196 F. 874 | 9th Cir. | 1912
The plaintiff in error was indicted and convicted for misuse of the mails of the United States 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). The indictment charged that he devised a scheme and artifice to defraud by means of circulars, letters, and reports and advertisements to be sent by and through the mails representing that he would cause to he incorporated and organized a corporation to be controlled by him for the purpose of buying, selling, and operating mines, etc., and lhat the said corporation was the selling agent of stock of eight mining companies named in the indictment, and that he had knowledge of the actual and prospective value of said mining properties, and that they were of great value, and that the proceeds of the sale of all stock thereof were to be used to develop and equip said properties, and that said companies would pay dividends, whereas such representations were false, and it was his iutention to convert all or a large part of the proceeds of the sale of said stock to his own use, and that said scheme and artifice to defraud was to be effected by opening a correspondence and communication by means of the post office of the United States. The plaintiff in error was sentenced to one year’s imprisonment at McNeil’s Island with hard labor.
We do not think that the language of the act of March 3, 1891, is susceptible of that construction, or that it was intended thereby to amend section 5541. The language of the act, “for the confinement of all persons convicted of crime whose term of imprisonment is one year or more at hard labor,” must be held to refer to sentences imposed on conviction of crimes for which punishment in the penitentiary at hard labor is prescribed by the statute. Said Mr. Justice Harlan (In re Mills, 135 U. S. 263, 10 Sup. Ct. 762, 34 L. Ed. 107):
“There are offenses against the United States for which the statute in terras prescribes punishment by imprisonment at hard labor. There are others the punishment of which is imprisonment simply. But in cases of the latter class the sentence of imprisonment — if the imprisonment be for a longer period than one year (section 5541) — may be executed in a state prison or penitentiary, the rules of which prescribe hard labor.”
The court in that case held that, where a statute of the United States prescribing a punishment by imprisonment does not require that the accused shall be confined in a penitentiary, a sentence of imprisonment cannot be executed by confinement in a penitentiary, unless the sentence is for a period longer than one year. The same was held in Re Bonner, 151 U. S. 242, 14 Sup. Ct. 323, 34 L. Ed. 149. In that case Mr. Justice Field, referring to imprisonment in the penitentiary,. said:
“To such an imprisonment infamy is attached, and a taint of that character can be cast only in the cases mentioned.”
The offense of which the plaintiff in error was convicted is punishable “by a fine of not more than $500 or by imprisonment of not more than eighteen months, or by both.”
“.Under this section, three matters of fact must be charged in this indictment and 'established by.the evidence at the trial; First, that the defendant devised a scheme or artifice to defraud; second, that such scheme or artifice to. defraud was to be effected by correspondence or communication with am-other person by means of the post office establishment of the United States; and, third, that in carrying out such scheme or artifice to defraud the defend-, ant deposited or caused to be deposited a letter in the post office of the United*877 Stales. These three elements are set forth In the indictment in this case, and the question for your determination is, Are they established by the evidence? I do not understand that there is any substantial controversy as to the second and third elements of the crime here charged. It appears from the testimony without apparent contradiction that the post office establishment of the United States was used extensively by the defendant for the purpose of promoting the business in which he was engaged, and there seems to be no question that he at all times intended to so use it.”
It is contended that this instruction was error for which the judgment should be reversed, for the reason that the second element as described in the instruction characterizes the scheme as an artifice to defraud, and that the court thereby assumed that the guilt of the plaintiff in error was established beyond controversy, whereas, in fact, all that had been established or admitted was that the business carried on by the plaintiff in error which was the subject of the indictment was conducted through the mails. The court very evidently did not intend to say that a scheme or artifice to defraud had been established, and we do not think the instruction given could have been so understood by the jury. What the court meant to say was that it was for tiie jury to decide whether or not there was a scheme or artifice to defraud, and that there was no substantial controversy but that the scheme, whatever it was, was to be effected by correspondence through the mails by the plaintiff in error, for the court proceeded to say that it appeared from the testimony without contradiction that the post office establishment was used extensively for the purpose of promoting the business in which the plaintiff in error was engaged. It appears from the bill of exceptions that it was admitted on the trial of the case that the plaintiff in error intended to use the mails of the United States in the furtherance of the business of the corporations described in the indictment, and that he did so use the mails. The bill of exceptions does not purport to contain all of the instructions nor all of the testimony in the case, hut it does appear therefrom that the court instructed the jury as follows:
“If you are satisfied from tbe testimony in this case, beyond a reasonable doubt, that the defendant made one or more of the false representations charged in the indictment in the sale of the mining stocks therein described, and that such false representations were so made in pursuance of a scheme or artifice to defraud previously devised by the defendant, which was to be effected by correspondence or communication with another person by means of the post office establishment of the United States, and that, in and for executing such scheme or artifice the defendant deposited in the post office of the United States the several letters described in the different counts of the indictment, you will find the defendant guilty as charged.”
The court thereby properly submitted to the jury the questions at issue in the case.
“If you find that such a scheme or artifice was devised more than three years prior to the return of the indictment, but that the scheme or artifice was still in existence and the defendant was operating under it within the three years, the case is still without the statute of limitations and may be prosecuted.”
Other assignments of error are presented, but we find in them nothing prejudicial to the rights of the plaintiff in error.
It is-ordered that the judgment be reversed and the cause remanded to the court below, with directions to enter such judgment on the verdict of the jury as the justice of the case requires and the acts of Congress authorize.