197 F. 511 | 2d Cir. | 1912
Lead Opinion
Two indictments were found against the defendant under section 5480 of the Revised Statutes, as amended by the Act of March 2, 1889, c. 393, 25 Stat. 873 (U. S. Comp. St. 1901, p. 3696), for having devised a scheme to defraud, and using the United States mail in furtherance thereof.
These indictments were consolidated under section 1024 of the Revised Statutes (U. S. Comp. St. 1901, p. 720).' :The defendant was found' guilty under the second- and third counts of each indictment. The second count of the first indictment charges the defendant with having devised a scheme to defraud one Wursthorne and others by inducing them to join the Standard Protective Society, alleged to be a fraudiulent organization, and- by mailing to said WHirsthorne on May 15, 1909, a postal card intended to carry out said scheme. The third count is identical with the second, except that it charges the mailing of a different letter to said Wursthorne on June 21, 1909.
The second and third counts of the second indictment describe the. same scheme in somewhat different language, and allege the mailing of two letters upon March 11 and March 19, 1909, respectively, in furtherance of the said scheme.
“The two schemes were identical in all respects, except that the Bankers' scheme was on a smaller scale. The financial history of the two societies disclosed precisely the same conduct by the defendant. In point of time, furthermore, they were being operated simultaneously, and from the same office and through the same employés. * * * Every allegation in the indictments respecting the Standard Society could have been made with equal truth and appropriateness regarding the Bankers’ Society.”
It is urged that the testimony was admissible upon the question o’ intent; but it is difficult to perceive how the repetition of identical facts can have any legitimate bearing upon this question. If the evidence as to the Standard Society showed a fraudulent intent, the Government’s case in that regard was established; nothing more was needed. If, on the other hand, it failed to show fraudulent intent, how was the omission supplied by duplicating the testimony under a different name ? A lawful act does not become unlawful because it is repeated!. If an act be shown to be illegal, it is enough. The prosecutor may safely res. on such proof; it does not add to its illegal character to show that it was repeated. If the contention of the Government be correct, thej acts of the defendant in relation to the Bankers’ Company constitute ani offense under section 5480 and he had a right to rely upon the rulej that he would not be called upon to answer accusations not found in. the indictment. It is impossible to say how much of this evidence may have prejudiced the jury.
The court charged that the testimony should only be considered in case the jury entertained a doubt as to whether the defendant intended to violate the statute.
“In that event” (said the court) “you may have recourse to this alleged similar transaction, with a view of satisfying your minds that this plan and device was culpable, and comes within the purview of the statute.”
In addition to the Bankers’ Society, the Government offered to prove two other fraudulent schemes, but the court, evidently thinking that sufficient latitude had been given, excluded the testimony.
The testimony received was to the effect that a transaction, identical in all material respects, had been carried on synchronously with the' transaction for which the defendant was indicted. ' The Bankers’ transaction could not, in our opinion, be used’ legitimately to establish intent to defraud in the Standard transaction, the two schemes being concededly the same. It did not tend to prove the guilty intent of the defendant as to the scheme in controversy to show that he had operatedl it before. We are not persuaded that the rule enunciated in Colt v,
The first letter, which is undated, is a complaint that there is a mistake in the writer’s account, and contains a statement that he has to fight for his money. The letter further says: “It does not appear to me that the Stándard will meet its demands any way.”
The second letter also contains various complaints and expressions of opinion, among them the following:
“I do not care to have my name mixed up and am going to withdraw order given to Miss Gatlin about using that rubber stamp. * * * AA'hen things moved on the square I did not mind, but they are not at present, and I do not intend you shall do just as you please. * * * AVhat you will have to do is to let me know what you are doing, or I will turn my resignation over to the hands of my lawyer, also my back salary account, and let him find out about same. You know you are on the ground, and you are going to protect yourself, and the dickens with the other fellow. This thing taking chances for glory does not pay. I will wait till AVednesday.” '
These letters are evidently' written by a person who is angry because his salary has not been paid, and who is endeavoring to enforce his demand by threats and insinuations. The defendant never answered these letters.
The U. S. Attorney makes an able and elaborate effort to defend their introduction," his argument, in this regard, covering twenty-five printed pages of his brief. The brief contains the following frank statement of the law:
“In an ordinary criminal case, it is axiomatic that what a witness other than the defendant knew or thought about the matter alleged to be criminal, is immaterial and inadmissible for any purpose.
“But in this case Marshall’s representation and whole defense was that the society was conducted by honest, reputable men. trying in good faith to conduct a. society under conditions that proved adverse.”
Surely the jury would be likely to draw the inference that the society was not being conducted by honest, reputable men when they have before them a letter ^addressed to the president intimating that business was conducted by dishonest methods, which letter the president never answered, and thereby impliedly admitted. It is not pretended that the letters could be used for this purpose, but only for the purpose of impeaching Williams. But the record shows that they were not needed! for this purpose; this is admitted by the U. S. Attorney. He says:
“It is to be carefully noted also that before tbe letters in question were offered in evidence, tbe witness, without objection from tbe defendant, bad testified that he bad made tbe damaging statements. He, therefore, had already been impeached by bis own testimony before the letters were offered.”
•'•'Why, then, were the letters necessary? With the letters before them, the jury could hardly fail to draw the inference that Marshall
We have no doubt that the errors pointed out were prejudicial to the defendant. With the objectionable testimony eliminated, the jury might have reached a different conclusion.
The judgment is reversed.
Rehearing
On Rehearing.
The decision of the court is, of course, based upon the facts in the case in hand, and cannot apply to other cases based upon different facts. The question here was whether the defendant had devised a scheme to defraud and had used the United States mails in furtherance thereof.
The petition for a rehearing is denied.
On Motion to Reopen Case and That the Question Involved be Certified to the Supreme Court.
As we are not in doubt about our conclusion, and think the government authorized to apply for a writ of certiorari to the Supreme Court, the motion that the cause be reheard and the question certified is denied.