After the foregoing statement of facts,
delivered the opinion of the court:
The scheme to defraud, set out in the indictment, was in essence this,, that the circular sent out would cause persons to whom it was sent to Believe that if they would remit two dollars on account of eight pieces of jewelry sent to them for sale, there would be received in return “one beautiful, black, ..Canadian seal fur collarette, made of genuine black Canadian seal, and one-half dozen handkerchiefs, pure white, pointed, * * * also one pocket book in all leather, with elaborate stampings, nickel frame, coin departments” &c. The bait thus held outj as set forth in .the indictment — and this ■ constitutes the gist of thq
The plaintiffs in error were entitled to .notice, from the indictment, of just what the claim of the Government was. The claim actually set forth related to the effect that the offer of the three articles would-have upon the mind of the persons approached. The indictment made no claim that the offer of the handkerchiefs alone, would amount to fraud; It might not. Or that the offer of the handkerchiefs and the pocket book would amount to fraud; it might not. But that the offer of the three considered together amounted to fraud. Indeed, it is plain that as a bait to the public, the fur collarette was distinctly and easily the leader.
But instruction two — as above stated — given to the jury, in effect put plaintiffs in error on trial as if such distinctive claims had been separately set forth; or, what is equally erroneous, as if plaintiffs could be tried on any claim irrespective of whether it was set forth or not. For this the judgment must be reversed. It is not the case of a lesser crime within the allegations of a greater. It is the case .of a trial upon a state of facts not pleaded in the indictment as a crime at all.
Reversed and remanded with instructions to grant a new trial.