232 F. 522 | 8th Cir. | 1916
The plaintiff in error, Benjamin F. Moffatt, hereinafter referred to as the defendant, was indicted, charged with violations of section 215 of the Penal Code. The indictment contained six counts, and upon trial the jury returned a verdict of not guilty as to all of the counts in the indictment, except count No. 3, and as to that a verdict of guilty was returned. So much of the indictment as is material here is as follows:
“The grand jurors of the United States, impaneled and sworn in the District Court of the United States for the Eastern Division of the Eastern Judicial District of Missouri at the September term thereof, in the year 1912, and inquiring for that division and district, upon their oaths present and charge that Benjamin F. Moffatt, late of the city of Chicago, county of Cook, state of Illinois, on the 2d day of December, 1910, did wrongfully and unlawfully devise a certain scheme and artifice for obtaining money and property from a class of persons herein in this count mentioned, residing within the United States, by means of false and fraudulent pretenses, representations, and promises, and thereupon converting such money and property to his own use, without repaying, or returning, or accounting for the same to such persons, and thereby defrauding said persons of the same, an essential and necessary part of which said scheme and artifice was the intentional use by him, the said Benjamin F. Moffatt, of the mails and post office establishment of the United States, that is to say, the scheme and artifice now here described, having on said 2d day of December, 1910, entered into a contract with the Buick Oil Company, a corporation organized and then existing under the laws of the state of California, with a capital stock of five million dollars ($5,000,000.00), divided into five million (5,000,000) shares, each of a par value of one dollar ($1.00), under the terms of which said contract said Benjamin F. Moffatt, together with one Frederick Lorenz and one Ben Levon, undertook to purchase, and said Buick Oil Company undertook to sell, five hundred thousand (500,000) shares of the capital stock of said Buick Oil Company (less such number of shares 'of said stock as had theretofore been issued under contracts which said Moffatt and others associated with him had theretofore had with said Buick Oil Company), at a price of fifteen cents (15 cents) for each said, share, said Benjamin F. Moffatt conceived on the day in this count aforesaid á device and plan for obtaining from E. S. Briggs, Charles W. Barth, Solomon S. Goldberg, John R. Gregg, L. W. Ham, Frank Houts, ffm. B. Martin, Edward C. Speckart, Wm. Trapp, Mrs. Fannie Tyrill, Mrs. Mildred Wagner, and Andrew Walz, and from others to the grand jurors unknown, and from the public generally, by the sale to such persons of said shares of said capital stock of said corporation, and of such shares of stock in said corporation as said Benjamin F. Moffatt should thereafter be able to acquire, numerous large sums of money upon divers false and. fraudulent pretenses, representations, and- promises by the said Benjamin F. Moffatt, made and to be made in print from time to time in newspapers, letters, circular letters, and pamphlets, sent and to be sent by mail to such persons,*525 In which, said newspapers, letters, circular letters, and pamphlets the said Benjamin F. Moffatt would and did represent (and said representations were reasonably calculated to cause said persons to believe) that the purchase of said stock by said persons was an advisable thing to d,o and would be a safe and profitable investment of their funds; that tho stock which said Benjamin F. Moffatt would and did offer for sale was treasury stock of said Buick Oil Ooiupany, belonging to said Buick Oil Company, and that the proceeds of such sale thereof as said Benjamin F. Moffatt had and might thereafter make would and did go into tho treasury of said Buick Oil Company; that in selling said stock said Benjamin F. Moffatt was acting for and on behalf of said Buick Oil Company; that said Benjamin F. Moffatt was the general manager of the Buick Oil Company, and that the offices maintained by him in tho city of Chicago, state of Illinois, were the offices of said Buick Oil Company; that the proceeds of the sale of such of said stocks as should be and had been sold by said Benjamin F. Moffatt, less the bare cost of selling said stock, had been and was being used in the development of the properties of the Buick Oil Company; that quarterly dividends had been and would be paid upon said stock of said Buick Oil Company, and that constantly increasing dividends upon said stock would be paid; that divers advertisements, circulars, and letters which said Benjamin F. Moffatt would send and had sent to said persons advertising said stock for sale was authorized and signed by said Buick Oil Company, and by D. D. Buick, president of said Buick Oil Company, and by D. D. Buick, individually, and that the said Benjamin F. Moffatt was the only person through whom said stock could safely be purchased; whereas in truth .and in fact, as he, the said Benjamin F. Moffatt, well knew at the timo and place of so devising said scheme and artifice for obtaining money and property in this count of this indictment mentioned, in the manner and by the means in this count aforesaid, and of converting such money to his own use, and of defrauding the persons in this count referred to out of the same, and of committing the several offenses of unlawfully using the mails in the counts of this indictment (from 1 to 6, both inclusive), and as the grand jurors aforesaid, upon their oaths aforesaid, charge the facts to be, such purchases of said capital stock by said persons was an inadvisable thing to do, and would be an unsafe, unprofitable, and losing investment of their funds; that the stock which said Benjamin F. Moffatt would thereupon sell to such persons was not treasury stock of said Buick Oil Company; and did not belong to said Buick Oil Company, and the proceeds of the sale thereof would not and did not go into the treasury of said Buick Oil Company; that in the sale of said stock said Benjamin F. Moffatt was not and would not act for and on behalf of said Buick Oil Company, but would act for and on his own account; that said Benjamin F. Moffatt was not and would not he the general manager of said Buick Oil Company, and that he had no official connection with said Buick Oil Company, and that the offices maintained by said Benjamin F. Moffatt in Chicago would not be and were not offices of said Buick Oil Company; that the proceeds of the sale of tho stock which said Benjamin F. Moffatt would and did sell, less the bare cost of selling said stock, did not and would not go into the development of the properties of said Buick Oil Company, but, on the contrary, said proceeds would be converted to the use of said Benjamin F. Moffatt; that quarterly and constantly increasing dividends had not been and would not be paid upon the outstanding stock of said Buick Oil Company; that the said advertisements, circulars, and letters which the said Benjamin F. Moffatt would and did send out in advertising said stock for sale, purporting to he authorized and signed by said Buick Oil Company, and. by D. D. Buick,- president of said Oil Company, and by D. D. Buick, individually, would not be and had not been authorized or signed by the Buick Oil Company, by D. D. Buick, president of the Buick Oil Company, or by D. D. Buick, individually, but that, on the contrary, said advertisements, circulars and letters, purporting to be so signed and authorized, would be and were sent out by said. Benjamin F. Moffatt without the knowledge or consent and over the protest of said Buick Oil Company, D. D. Buick, president of said Buick Oil Company, and D. I>. Buick, individually, and that said Benjamin F. Moffatt was not and would not be the only person from whom said stock could safely be purchased.”
“Third Count. And’the grand Jurors aforesaid, upon their oaths aforesaid, do further present and charge that said Benjamin F. Moffatt, on or about the 16th day of December, 1910, so having devised the scheme and artifice for obtaining money and property from the class of persons referred to and described in the first count of this indictment by means of false and fraudulent pretenses, representations, and promises in said first count mentioned and described, and of defrauding said persons of their money and property by the means and in the manner in said first count aforesaid (the allegations of said first count descriptive of said scheme and artifice including the allegations of intent and knowledge on the part of said Benjamin F. Moffatt are by reference hereby incorporated in this count as fully as if here set forth and repeated), in and for executing said scheme and artifice and attempting so to do, and for the purpose and with the intention on his part of executing said scheme and artifice, and attempting so to do unlawfully, feloniously, and knowingly did cause to be delivered by mail by the post office establishment of the United States, according to the direction thereon, at the city of St. Louis, and within the division and district aforesaid, and within the jurisdiction of the court, a certain letter, dated at Chicago, Ill., and inclosed in an envelope and addressed and directed to ‘Mr. E. S. Briggs, 418 Wainwright Bldg., St. Louis, Mo.,’ and which said envelope then and there bore a return card as follows, to wit: ‘Return in Five Days to Buick Oil Company, Room 420 Marquette Bldg., Chicago, 111.,’ and which said envelope and letter therein contained was by the said Benjamin F. Moffatt, at the time aforesaid, deposited and caused to be deposited in the mails, of the United States, with an uneanceled 2-cent postage stamp thereon, at the city of Chicago, in the state of Illinois, for mailing and delivery, with the intent on the part of him, the said Benjamin F. Moffatt, that said letter and said envelope should be carried by the mails of ,the United States and delivered to- said E. S. Briggs, one of the said persons so to be defrauded, and the person to whom it was directed, according to the directions thereon, at and in the city of St. Louis, state of Missouri, and which said letter aforesaid was thereupon delivered by mail by the post office establishment of the United States, according to the direction thereon, which said letter was as follows, to wit:
“ ‘Officers. Home Office.
“ ‘D. D. Buick, Pres. Los Angeles, CaL
“ ‘J. B. Lehigh, Vice Pres. Properties.
“ ‘Stacy C. Lamb, Treas. . Maricipa, Cal.
“ ‘J. M. Herndon, See. Sunset, Cal.
“ ‘Thos. D. Buick, Asst. Sec. Midway, Cal.
“ ‘Buick Oil Company, of California.
“‘Capital $5,000,000.
“ ‘D. D. Buick, President.
“ ‘Room 420-421 Marquette Building, Chicago, Ill.
“ ‘Last Opportunity to buy Shares at 50 Cents.
“ ‘We take this opportunity to notify you as a stockholder of this company that this is„the very last opportunity you will have to purchase shares of this company at 50c. This company’s shares go to 75c December 20th, and we positively will not accept any applications, unless reservations have already been m'ade, for the sale of any shares at 50c after the date of advance.
■ “ ‘To the stockholders who wish to pay for their stock in full cash we desire to say that they may deduct 5% from the total amount of their remittance. This does not apply to. stockholders who buy on the installment plan.
“ ‘The most important event heretofore recorded in the progress of this company transpired this week when our workmen began installing the casing for our well. The drilling has been stopped for a few days to allow this casing or pipe to be set in place. Drilling will begin immediately after this is-done, which should be next Sunday or Monday.
*527 “ ‘As per our notice heretofore sent to you, Mr. Buick is now in California and is in charge of general directions of the company in the field. He has with him a party of stockholders, and ho contemplates being able to show these stockholders, what it means to strike oil in this field, as he anticipates tiu; coming in of our No. 1 well before these stockholders leave California.
“ ‘Tf you desire to purchase any of these shares or to add to the holdings you already have in this company, wo would advise you by all means to fill out the inclosed application, send your remittance with it and mail same not later than Saturday or Sunday of this week. In case you cannot send your remittance for a few days, you should write us to this effect, and definitely state when your first remittance will bo received, we will be glad to hold the amount of shares you desire for a period of three days. This only applies to stockholders, and does not apply to stock which you may reserve for your relatives or friends, so that in making out the application, see that your name appears as the applicant even it' you buy for some one else.
“ ‘We are. with very best wishes,
“‘Yours very truly, Buick Oil Company,
- “ ‘Per B. P. Moffatt, Gen. Mgr.’
“Contrary to the form of the statute in such case made and provided and against the peace and dignity of the United States.”
“Said supposed grand jury, so selected by the court as aforesaid, assumed to aet as a legal grand jury for said division of said district, and without lawful and valid power to do did so act as a grand jury, to the great prejudice of, this defendant, and in violation of the lawful and constitutional rights of this defendant, and on, to wit, the 12th day of December, 1912, return into this court and cause to be filed herein the said supposed indictment in this cause, whereby this defendant says ho is prejudiced, and has been deprived of his liberty without due process oí law, and has been held to answer for an infamous offense without valid and lawful presentation of indictment by a lawful grand jury. And this defendant says that all of the aforesaid orders and proceedings relating to the formation and selection o£ the aforesaid supposed grand jury and the act thereof in returning and causing to be filed said sup*528 posed indictment appear of record in this conrt, and to the record thereof the defendant respectfully calls the attention of the court.”
The transcript of record filed in this cause does not show that the United States attorney demurred to the plea, nor that a motion to strike was made. None of the records of the court with reference to the manner of drawing the jury, which records are referred to in the plea, are set forth in the transcript of record — simply the following order, October 1, 1913, overruling the plea in abatement:
“Now, at this day, come the parties hereto hy their respective attorneys, and the plea in abatement filed hy the said defendant is argued and submitted, and adjudged insufficient, and overruled by the court.”
In view of the fact that there is no admission of the facts set forth in the plea, by demurrer or otherwise, we must assume that the court considered the allegations of the plea in abatement in the light of the record as to drawing the grand jury, to which reference was made in the said plea, and that the order adjudging the plea in abatement insufficient and overruling the same was made upon a consideration of the allegations of the plea and the record of the court as to the method of drawing and impaneling the grand jury. In the absence of a specific admission by demurrer or otherwise, and an entire absence of the record of the court as to the manner in which the grand jury was drawn and impaneled, the record- here does not present this question for review.
It may be noted, also, that this plea contains no averment of specific facts showing that the defendant has been prejudiced or injured by tile selection of the grand jurors in the manner alleged. It is not even alleged that any juror was disqualified, nor is it alleged that the grand jury was composed of jurors not selected pursuant to the order of the court, in the manner provided by law — simply that 24 responded to the summons, instead of the limited number of 23. ' No showing is made as to whether or not 1 of the 24 was disqualified or whether or not all except 17 were disqualified, and while it may follow that, if only 23 names had been drawn and 23 persons subpoenaed, instead of 30, the grand jury might have been differently composed, from this it cannot be inferred that injury or prejudice resulted to the defendant. Hyde v. United States, 225 U. S. 373, 32 Sup. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614.
There is no allegation in the plea that defendant had not been held under arrest prior .to the finding of the indictment, or that he did not know it was being investigated by the grand jury. No excuse whatever is attempted to be given in the plea for not interposing it sooner than more than nine "months after the return and filing of the indictment. There is no allegation in the plea that the defendant was not present when the grand jury was selected, nor alleging that he was absent or that he was without the state, or, if without the state, when he came to the place where the court was held. There is no intimation in the plea of the time when the accused first ascertained the facts stated therein, nor any reason indicated for this long delay in filing the plea.
This is important, in view of the rules applicable to such pleas,
An objection of this kind should be made at the earliest day that the defendant has an opportunity to make it. Nineteen days after the indictment was filed was held too great a delay in Lowdon v. United States, 149 Fed. 674, 79 C. C. A. 361. A delay of 5 days was noted in treating a plea as insufficient in Agnew v. United States, 165 U. S. 36, 17 Sup. Ct. 235, 41 L. Ed. 624. Such a plea, filed 19 days after service of process on the indictment, and more than 2% months after it was returned, and which contains no statement as to when the fact of the indictment or the matters alleged first became known to the defendant, comes too late. United States v. American Tobacco Co. (D. C.) 177 Fed. 774, 777.
Under the foregoing circumstances, even if the record was here, and it would sustain all of the allegations of the plea in abatement, the plea must be denied under the general rule of the federal courts, that omissions which do not impair any substantial right or prejudice the defendants, or accused, will be disregarded, unless otherwise required by positive statute. Section 1025, Revised Statutes (Comp. St. 1913, § 1691), declares that no indictment, found and presented by a grand jury in any Distirct or Circuit or other court of the United States shall be deemed insufficient, nor shall the trial, judgment or other proceedings thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant. United States v. Benson et al. (C. C.) 31 Fed. 897-901. This statute, in effect, directs that the existence of irregularity, if error of form, shall not be presumed a wrong to the accused; but it must be shown to- be so. Of the irregularities alleged by these pleas and which are subject to this rule, may be mentioned those as to impaneling the jury, the disqualification of jurors, etc.
If there were doubts whether this section includes irregularity in the entire procedure or only those of form, in the indictment, the ruling of Mr. Justice Brewer, concurred in by Judge Thayer, in United States v. Molloy (C. C.) 31 Fed. 23, disposes of them in favor of the first proposition. United States v. Cobban (C. C.) 127 Fed. 713. A plea in abatement to an indictment, alleging that an order of the judge directing the selection of a certain number of names from each of several counties from which jurors were to be drawn constituted a manifest injury to the accused, without showing how accused was injured thereby, was insufficient. United States v. Merchants’ & Miners’ Transportation Co. et al. (C. C.) 187 Fed. 355.
And such a plea, on the ground of irregularity in the constitution of the grand jury, to be good, must allege facts showing defendant
A demurrer was interposed and overruled. Defendant assigns error. The contention of the defendant is that the indictment was insufficient to confer jurisdiction upon the court to try the defendant, in that it does not appear from the description of the alleged scheme and artifice that an intent to defraud was an element thereof.
The uniform rule on this subject is that all of the material facts and circumstances embraced in the definition of the offense must be stated, or the indictment will be defective. No essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment or implication, and the charge must be made directly, and not inferentially, or by way of recital. The statute alleged to have been violated is directed against devising or intending to devise any scheme or artifice to' defraud, to be effected by communication through the post office. A reference to the indictment as above set forth, discloses, as a foundation for this charge, a scheme to defraud, which the accused devised, with all such particulars as are essential to constitute tire scheme and to acquaint the defendant with what he must meet at the trial. United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516.
It is contended that the intent to perpetrate the fraud must be alleged in the part of the indictment which follows the videlicet, and that it is not sufficient to allege it in the descriptive part of the indictment. This contention is without merit. It is sufficient if it is charged in any part of the indictment. United States v. Maxey (D. C.)
Section 215 of the Penal Code only requires two things to complete the offense charged in this indictment, (1) That a scheme to defraud be devised; and (2) that, for the purpose of executing it, the defendant caused to be delivered by mail, by the post office establishment of the United States, the letter set forth in count 3 of the indictment, to the person therein named. Keeping the contention of the defendant in mind, an examination of the indictment above set forth discloses that it alleges that the defendant did wrongfully, etc., devise a certain scheme and artifice for obtaining money and property * * * by means of false and fraudulent pretenses, representations, and promises, and thereupon converting such money and property to his own use. Then follows an allegation that he had contracted to purchase 500,000 shares of stock in the Buick Oil Company, and after that the indictment proceeds to allege that he conceived and devised a plan for obtaining money and property from the persons named in the indictment by the sale to said persons of said shares of stock by divers false and fraudulent pretenses, representations, and promises, which were set out in the indictment, in specific terms setting forth the scheme and artifice above referred to.
The indictment then alleges, in substance, that the defendant at the time and place of devising the scheme and mailing the letter referred to in count 3, and of converting such money to his own use and of defrauding the persons in that count referred to, out of the same, well knew that said representations were false, and that it was his intent to convert the proceeds of all sales to his own, use, contrary to the representations made by him.- His intent to defraud clearly appears from the ordinary, plain interpretation of the language used in the indictment. It is clear from an examination of the indictment that it is charged in the indictment that this scheme and artifice consisted of false and fraudulent pretenses, representations, and promises, plainly setting them forth, and was devised by the defendant. It is alleged, not only that these representations and pretenses and promises were false, but that he knew them to be false, and that it was his intention
“Q. Now, Mr. Briggs, I hand you a letter marked Exhibit 51. and an envelope marked Exhibit 51a and I will ask you if you received that letter in that envelope through the United States mail at about the time of the postmark on the envelope? A. Yes, sir. Q. Now, did you receive this letter and envelope through the United States mail here at St. Bouis? A. Yes, sir.
“Cross-Examination. Q. Mr. Briggs, who delivered this letter to you? A. Why, it come in the usual course of the mails, with my personal as well as business mail. It all come in at one time. Q. That is to say, the carrier brought it in? A. Yes, sir. Well, that is, we have in our office — we have what is called the mail room, and all the mail for all of the different railroad offices for the different officers first comes to that room, and he assorts it, and then — I really think that on the plan the railroads have adopted we have to go after the mail at the post office. They have a box here — a large box. Q. Well, you didn’t receive this from the hands of anybody connected with the United States post office? A. No, sir; I did not.”
The introduction of the letter was then objected to, on the ground the evidence did not show the letter had been delivered by the post office establishment in the city of St. Louis. In our opinion, under this undisputed testimony, this defendant caused the delivery of this letter at St. Louis, by the post office establishment of the United States, and that a delivery to the messenger at the post office was a delivery to Briggs. United States v. Safford (D. C.) 66 Fed. 942; United States v. Lee (C. C.) 90 Fed. 256; United States v. Bullington (C. C.) 170 Fed. 121.
The plain purpose of Congress in making it an offense to knowingly cause to be delivered by mail, according to the direction thereon, a letter, etc., was to confer jurisdiction upon the court at the place where the letter is delivered,. to punish the offender, and the statute must not be so strictly construed as to defeat this plain intention of Congress. The defendant was admittedly the moving cause. The evidence shows that it was he that caused the preparation
“I object. The history of what was done there must end on the 10th of October (1911). That is the last day that Moffatt is charged with having knowledge of the conditions, and we cannot impute any fraudulent intent to Moffatt for sonfething that occurred afterwards.”
After the testimony was received counsel said:
“To make my record perfectly clear, I move at this point to strike out all that this witness has said in reference to conditions or operations after the 10th of October, 1911.”
It will be observed that the objection was broad enough to challenge the admissibility of all evidence of acts and conditions after the date mentioned, including the acts of the accused himself. In other words, the objection on its face was not confined to the productiveness of the several oil wells, over which it might be said the accused had no control. It is quite true that an act which is not an offense when committed cannot be made one by the subsequent independent act of the person with which it has no connection (United States v. Fox, 95 U. S. 670, 24 L. Ed. 538); also that the criminal character of a transaction is to be determined by the conditions existing at the time (Norton v. United States, 205 Fed. 593, 123 C. C. A. 609); also that the intent with which an accused does a subsequent act cannot be imputed to him as of the prior date of the crime charged (United States v. Wootten [D. C] 29 Fed. 702). These rules, however, do not conflict with or impair the long-established doctrine that in cases involving fraud, or the intent with which an accused does an act, collateral facts and circumstances, and his other acts of a kindred- character, both prior and subsequent, not too remote in time, are admissible in evidence. See Allis v. United States, 155 U, S. 117, 119, 15 Sup. Ct. 36, 39 L. Ed. 91. Therefore, so far as the effort of counsel was to exclude the subsequent acts of the accused of the character mentioned, it was properly denied.
“Courts of justice are not obliged to modify tbe propositions submitted by counsel, so as to make them fit tbe case. If they do not fit, that is enough to authorize their rejection. * * * If any part of it (the evidence) was incompetent, the court might, on a general motion to exclude the whole, have excluded such parts; but the court was not obliged to do so.”
“Relevancy does not depend upon the conclusiveness of the testimony offered, but upon its legitimate tendency to establish a controverted fact.” Interstate Commerce Commission v. Baird, 194 U. S. 26-44, 24 Sup. Ct. 563, 569 (48 L. Ed. 860).
In Columbian Ins. Co. v. Lawrence, 2 Pet. 24, 44, 7 L. Ed. 335, Marshall, C. J,, said:
“It is undoubtedly true that questions respecting the admissibility of evidence are entirely distinct from those which respect its sufficiency or effect. They arise in different stages of the trial, and cannot, with strict propriety, be propounded at the same time.”
A recognized method of securing the limitation of evidence to its legitimate bearing is by a request for an instruction to the jury. Connecticut Mutual Life Ins. Co. v. Hillmon, 188 U. S. 208, 23 Sup. Ct. 294, 47 L. Ed. 446; Southern Pacific v. Schoer, 114 Fed. 466, 52 C. C. A. 268, 57 L. R. A. 707.
The statute “contemplates any scheme involving matters of enforceable or unenforceable contract, representation of facts, expression of opinions, or assurances of past, present, or future conditions, provided only it was designed and reasonably adapted to deceive and defraud. * * * If the intent and purpose is to deceive and defraud the unwary, it inlatters not what form the project is made to take.”
“I object to that statement, that the well lasted about a year. There was some evidence to that effect, but it was stricken out by order of the court.”
As to this it is enough to say that the sole ground of objection was that the testimony to which the district attorney referred had been stricken out and was no longer in the case. Counsel was in error; the testimony had not been stricken-out.
The judgment below is affirmed.