231 F. 561 | 6th Cir. | 1916
Finnegan, the defendant below, was indicted, convicted and sentenced under section 215 of the Penal Code, for using the mails to defraud, tie prosecutes error to obtain a reversal of the judgment against him.
The first paragraph of the first count, the only one on which he was convicted, charges that, on or about January 31, 1911, at Calumet, Midi., he devised the following scheme to defraud “divers other persons” : He and his agents personally and through the mails and by printed circulars and other advertising matter would falsely and fraudulently represent to “such persons” in various localities in Michigan, Wisconsin and Minnesota that he was the agent of the Kelvin-Arizona Copper Company, the owner of a rich and valuable copper mine near Kelvin, Ariz., duly authorized to sell and deliver its stock, and that he and his agents would solicit orders for the stock “among ignorant persons, especially Austrians not familiar with business,” would receive and accept orders from “such persons” for stock, enter into written contracts with “such persons” for its purchase and for the delivery of certificates therefor in six months from the date of such contracts, would secure from “such persons” the money in payment for the same, and would solicit and induce “such persons” to open correspondence with him at Calumet and forward to him there through the mails money orders for the purchase of such stock and remittances for the same, merely intending to get possession of the moneys to be sent to
“These expressions clearly import an intention to defraud different individuals, with whom it was intended to open correspondence, and who, therefore, by the settled rule of pleading, should have been described by name in the indictment, or a good and true reason given for the omission.”
In so far as the record indicates, he owned but 41 shares of mining stock, and that was in the Sultana-Arizona Copper Company and of the face value of $5 per share. He exhibited his certificate for these shares sometimes, at least, in his efforts to obtain purchasers. His wife owned about 2,366 shares in the same company. He had been agent for that company, but on April 28, 1910, it went out of business and its property was taken over by the newly organized Arizona-Sultana Copper Company, notice of which reorganization and of the change of corporate name was given to every stockholder of the old company at that time. The new company gave 5 shares of its stock, of the face value of each, for each of the shares of its predecessor company (excepting about ,9,000 shares held in small lots which were not turned in for exchange), withdrew from the market the stock so given in exchange, and escrowed it until May, 1911, and, on account
But there is also evidence to> show that at some time within the period of Eustick’s employment—it may have been December, 1910— the defendant caused blank applications to be printed and subsequently used them in part for the sale of the stock of the newly organized company. He was not, however, at any time its agent. He also exhibited in soliciting subscriptions a plat of the Sultana-Arizona Copper Company, the representation being made that the property shown on it was that of the Kelvin-Arizona Company, that the name shown on it was that of the old company, and that the name of the mine whose stock he was selling was Kelvin-Sultana. He also gave out letters containing somewhat glowing accounts of the last-named mine, its rich deposits of ore, its progressing developments, and its excellent prospects of great profits to those who- invested in its stock. The Diamond Joe shaft, a cut of which was exhibited, was represented to be on the property of all of the three companies.
A more extended résumé of the evidence would unduly prolong this opinion. Enough has been shown to indicate its trend and some of the problems with which the jury had to wrestle. It was claimed for the defendant below, as here, that he intended no wrongdoing, that he was confused as to the names of the companies, that the use of the name of the Kelvin-Arizona Copper Company was merely an error which he attempted to correct, and that it was his purpose at that time to deliver the stock which he in fact intended to sell, but improperly designated. On the other hand, the government has at all times claimed that he was not a novice in the handling of stocks, that the use of the name of the newly organized company and that of its predecessor was an afterthought, designed to impair the force, and afford escapo from the consequences, of his wrongful use of the name of the Kelvin-Arizona Copper Company, and that if he intended to correct a mistake he would have wholly abandoned the use of the blanks he first employed and notified his purchasers of his original error. The jury adopted the government’s theory. It must have considered that he sold, and, with knowledge of the correct names of all of the companies mentioned,
The many other assignments of error have been considered, but a review of them is deemed unnecessary. The judgment of the District Court is affirmed.