*1 336 ERWIN, Appellant,
Elizabeth M.
v. America,
UNITED STATES of Appellee.
No. 12903. Appeals
United of States Court Circuit. Sixth 13,
Feb. 1957. Tenn., Osborn, Jr., Nashville,
Z. T.
Barksdale, Hudgins Osborn, Nashville,
&
Tenn.,
brief,
appellant.
on the
for
Gant, Jr.,
Atty.,
Andrew M.
U. S.
Nashville, Tenn.,
Elledge, Jr.,
Fred
U.
Atty., Nashville,
S.
Tenn.,
brief,
on the
appellee.
for
MARTIN,
Before
McALLISTER and
MILLER,
Judges.
Circuit
McALLISTER,
Judge.
Circuit
using
From a conviction for
the mail to
carry
defraud,
out a scheme to
in viola-
1341,
tion of Title 18 U.S.C.A.
de-
the
§
appeals, claiming prejudicial
fendant
er-
jury.
ror in the instructions to the
During
charge,
the course of its
the
following pertinent
trial court read the
jury:
of
section
the
to
statute
the
“Whoever, having devised or in-
tending
any
to devise
scheme or ar-
defraud,
obtaining
tifice to
money
or for
property by
or
means of
fraud or
pretenses, rep-
fraudulent
resentations,
promises,
or
for the-
purpose
executing
of
such scheme or
artifice,
attempting
so,
or
to do
places
any postoffice
in
or authorized
depository
matter, any
for mail
mat-
thing
ter or
whatever to be
or
sent
by
Depart-
delivered
the Postoffice
ment,
knowingly
or
causes to be de-
by
according
livered mail
to the di-
therein,
place
rection
or
the
at
at
which it is directed to be delivered
person
to the
to whom it
is ad-
dressed, any
thing,
such matter or
*2
337
intent;
guilty
pro-
cent or
the court was
imprisoned
but
or
as
shall
fined
be
1
give
requested
not
instruction.
to
this
vided in the Act.”
request,
In the
of such
the fail
absence
reading
Immediately
above
the
after
ure so
error.
to
was not
instruct
jury, the
the
section of the statute to
bearing
appellant
As
on the fairness to
court continued:
trial
charge,
of
said that the
the
it is to be
connection,
“Now,
ladies
in that
length
jury
on
instructed the
at
the
court
question
jury,
gentleman
Court
the
and
charges you
of the
doubt, and, in
of reasonable
law
the
that under
regard
addition, with
to circumstantial
you,
just
it
read to
which has
been
evidence, charged
“the circum-
that
defendant
the
is immaterial whether
upon
point
unerr-
so
stances relied
must
not,
money
any
and that
or
obtained
guilt
ingly
as to
to
of
accused
the
the
necessary
to actual-
for her
it wasn’t
hypothe-
every
exclude
sis;
other reasonable
money by
ly
any
to
her acts
obtain
must be
that such circumstances
by
guilty
defined
of
offense
be
the
other, and incon-
consistent with each
the statute.”
hy-
any
reasonable
sistent with
other
charge
foregoing
All of the
guilt
pothesis except
the accused.”
the
of
of law.
a
was correct as matter
Finally,
the
court instructed
the
contends, however,
Appellant
the
that
jury
find
defendant
if it should
the
that
prejudicial,
re
trial court committed
appear
guilty,
that she did
and it should
good
error,
the
faith of
versible
because
any money,
actually
“that
not
receive
defense;
was
that the
the defendant
question
a
should be
that
would be a circumstance
jury;
her intent was
the
of
for
by
in
the Court
taken into consideration
jury
and
er,
was entitled to consid
that the
determining
should be im
what sentence
question
passing upon
of the
in
the
re
posed.”
consider this
do not
We
intent,
guilty
innocent or
defendant’s
case;
error,
but
instant
in the
versible
money
by
obtained
use
“the
to which
use
according
cases,
to circumstances
in other
citing
put,”
United
of the mails was
instructions,
language
such
the
or
of
the
653;
Brandt, Cir., 196
v.
2
F.2d
States
suggestive
language might
and
well be
Cir.,
States,
F.
5
167
Coleman v. United
good practice
prejudicial;
is
for
and it
Cir.,
837;
Buckner, 2
2d
United States v.
possibil
to the
not to refer
a
court
trial
921;
Mc
v.
108 F.2d
Namara, Cir.,
and United States
sentencing
instructions.
in his
of
ities
is true
2