Kercheval v. United States, 36 F.2d 766

Kercheval v. United States

36 F.2d 766 | 5th Cir. | 1930

FOSTER, Circuit Judge.

Appellant was convicted on an indictment charging him and one Slentz with using the mails in furtherance of a scheme to defraud. Error is assigned to the overruling of a motion for a directed verdict, on the ground of- a fatal variance between the allegations of the indictment and the proof. '

The indictment substantially alleges a scheme by which appellant and his eodefendant were to sell shares and interests in certain designated oil and gas leases by false representation that they were of great present and prospective value and that the said defendants were the managers and promoters in good faith of such enterprises, which promises were to be made under their own names and under the names of the Kereheval Production Company and the Kereheval Production Company, Inc. The various letters and other documents sent through the mails are set out in extenso in the counts relating to them, and show that what was offered to the public were shares of stock in, and bonds issued by, the Kereheval Production Company; most of the letters being signed also by the name of R. D. Kereheval.

It is contended that the proof tended to show a seheme to sell shares of stock in the Kereheval Production Company, a trust estate, and the Kereheval Production Company, a corporation, whereas the indictment charged a scheme to sell shares and interests in certain designated properties.

There was sufficient evidence to show the fraudulent character of the seheme and the mailing of the letters, and that the leases described in the indictment were held out to the public as being owned by one or the other of the Kereheval companies.

The mailing of the letters constituted the offense, and it is impossible that the defendant could have been prejudiced in his defense in that regard. And undoubtedly the conviction in this ease is a bar to any future prosecution for mailing the same documents. There is small difference between charging a seheme to sell an interest in certain property and proving the sale of shares of stock in corporations pretending to own the said property. Doubtless the average stoekhold■er believes himself to be the owner of his share of the property of the corporation, overlooking the technical legal difference. The rule as to variance is stated by Wharton as follows: “Variance in criminal law is not now regarded as material, unless it is of such a substantive character as to mislead the accused in preparing his defense,- or places him in a seeond jeopardy for the same offense.” Wharton’s Criminal Evidence (10th Ed.) p. 276. *767In general, the rules of evidence in criminal and civil eases are the same. United States v. Gooding, 12 Wheat. 469, 6 L. Ed. 693. The above-stated rule- is supported by the following authorities: Nash v. Towne, 5 Wall. 689, 18 L. Ed. 527; Washington, etc., Railroad Co. v. Hickey, 166 U. S. 521, 17 S. Ct. 661, 41 L. Ed. 1101; Pope v. Allis, 115 U. S. 363, 6 S. Ct. 69, 29 L. Ed. 393; Standard Oil Co. v. Brown, 218 U. S. 78, 30 S. Ct. 669, 54 L. Ed. 939; Fuller Co. v. McCloskey, 228 U. S. 194, 33 S. Ct. 471, 57 L. Ed. 795.

Furthermore, under the provisions of the Act of February 26, 1919 (23 USCA § 391), errors that do not affieet the substantial rights of the parties are to be disregarded. As applied to the question of variance, see West v. United States (C. C. A.) 258 F. 413; Kalin v. United States (C. C. A.) 2 F.(2d) 58; Mansolilli v. United States (C. C. A.) 2 F. (2d) 42; Beavers v. United States (C. C. A.) 3 F.(2d) 860; Meyers v. United States (C. C. A.) 3 F.(2d) 379.

Other errors assigned need not be reviewed, as they are without merit. The record presents no reversible error.

Affirmed.