107 F. 697 | 7th Cir. | 1901
after making the foregoing statement, delivered the opinion of the court.
The indictment in this case, it is to he observed, does not charge a scheme to defraud the public generally, or to defraud a class not capable of being resolved into individuals. Bo charged, it would be evident that the persons intended to be injured were not known, and there could, of course, be no necessity for an averment to that effect. The scheme alleged in this indictment was “to defraud divers other persons * * * by inducing those persons severally to send to him divers valuable articles, * * * and to defraud thereof the several persons who should so send the same, * * a scheme and artifice which he * * * intended to effect by opening correspondence and communication * * * with the several persons so intended to be defrauded, and by inciting those persons to open communication with him.” These expressions clearly import an intention to defraud definite 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. King v. Keg., 7 Q. B. 806; Com. v. Andrews, 332 Mass. 263; People v. Arnold, 46 Mich. 268, 9 N. W. 406; Moore v. State, 65 Ind. 213; U. S. v. Hess, 124 U. S. 483, 8 Sup, Ct. 571, 31 L. Ed. 516; Durland v. U. S., 361 U. S. 306, 16 Sup. Ct. 508, 40 L. Ed. 709; State v. Woodson, 5 Humph. 55; Murphy v. State, 24 Miss. 590; White v. Reg., 13 Cox, Cr. Cas. 318; 1 Chit. Cr. Law, 210; 2 Hawk. P. C. 319; Clark, Cr. Proc. § 94; Starkie, Cr. Pl. 188.
In respect to the rule that the persons intended to be injured should be named in an indictment, a scheme to defraud by means of correspondence through the mails is not essentially different from a conspiracy to defraud at common law. Touching the latter, the rule is thus stated in 2 Whart. Cr. Law, § 1396:
“It is essential to set forth the names of the parties to be injured if they are capable of definite ascertainment, unless a good reason be given for their nonspecification. * * * Where, therefore, the persons to be injured were defined at the time of the conspiracy, and ascertainable by the pleader, their*700 names' should be specified in the indictment. Where, however, the conspiracy was to defraud a class not capable of being at the time resolved into individuals, or to defraud the public generally, then the specification of names, is. impracticable, and hence unnecessary.”
See, also, Whart. Cr. Pl. §§ 109-118, and authorities cited in the notes.
■ In Ú. S. v. Hess, supra, the indictment, brought like the one before us, under section 5480' of the Revised Statutes, without describing the scheme, charged the defendant with “having devised a scheme to defraud divers other persons to the grand jurors unknown,” which he “intended to effect by inciting such other persons to open communication with him,” etc.; and, in response to the contention that it was enough that the indictment should follow the language of the statute, the court said:
“Tbe general, and, with few exceptions, of wbicb tbe present is not one, tbe universal, rule on this subject is that all tbe material facts and circumstances embraced in tbe definition of tbe offense must be stated, or tbe indictment will be defective. * • * The statute is directed against ‘devising or intending to devise any scheme or artifice to defraud,’ to be effected by communication through tbe post office. As a foundation of the charge, a scheme ór artifice to defraud must be stated, which the accused either devised or intended to devise, with all such particulars as are essential to constitute the scheme or artifice, and to acquaint him with what he must meet on the trial. * * * Assuming that this averment of ‘having devised’ the scheme may be taken as sufficiently direct and positive, the absence of all particulars of the alleged scheme renders the count as defective as would be an indictment for larceny without stating the property stolen or its owner or party from whose possession it was taken. The doctrine invoked by the solicitor general, that it is sufficient, in an indictment upon a statute, to set forth the offense in the words of the statute, does not meet the difficulty here. Undoubtedly the language of the statute may be used in the general description of an offense, but it must be accompanied with such statement of the-facts and circumstances as will inform the accused of the specific offense, coming under the general description with which he is charged.” '
Tbe opinion in Durland v. U. S. is more explicitly in point. Tbe indictment in that case was also for a violation of section 5480 of tbe Revised Statutes, and charged that tbe defendant, by means described, devised “a scheme and artifice to defraud; that is to say, by divers false pretenses and subtle means and devices to obtain and acquire for himself, of and from divers persons to this grand inquest unknown, a large sum of money, to wit, the sum of fifty dob lars each, and to cheat and defraud each of said divers persons thereof by then and there representing,” etc.; and that “in and for executing such scheme * * * he did place and cause to be placed in a post office of the United States at Philadelphia, to be sent and delivered by the said post-office establishment, divers letters and packets, to wit, twenty letters and circulars, directed, respectively, to the said divers persons, the names and addresses of whom are to this grand inquest unknown, contrary,” .etc. It will be observed that the “said divers persons” to whom the letters and circulars were, respectively, addressed, are shown, by force of the word “said,” to have been the persons intended to be defrauded, and to the objection that the names and addresses should have been stated the court said: “The omission to state the names of the par-,