129 F. 551 | 6th Cir. | 1904
after making the foregoing statement, delivered the opinion of the court.
i. By the motion to quash and a demurrer, a number of objections were made to the indictment: That it is indefinite and repugnant in its averments as to time; that it does not charge the offense directly, but only by intendment and argumentation; that the scheme to defraud was one impossible of performance, and therefore not within the contemplation of the law; and that the things the defendants pretended they would do were forbidden by the laws of Ohio, and therefore the defendants cannot be punished for not doing them. The form of the indictment might have been improved, but a defect in matter of form only is immaterial. Rev. St. § 1025 [U. S. Comp. St. 1901, p. 720]. As Mr. Justice Brown said:
“While the rules of criminal pleading require that the accused shall be fully apprised of the charge made against him, it should, after all, be borne in mind that the object of criminal proceedings is to convict the guilty, as well as to shield the innocent, and no impracticable standards of particularity should be set up whereby the government may be entrapped into making allegations which it would be impossible to prove.” Evans v. U. S., 153 U. S. 584, 590, 14 Sup. Ct. 934, 38 L. Ed. 830.
It is sufficient, under section 5480 [U. S. Comp. St. 1901, p. 3696], to charge that the defendants, having devised or intending to devise a scheme to defraud, to be effected by the use of the mails, did, in the execution of this fraudulent scheme, deposit for transmission a letter in some post office. The offense is the misuse of the mails — the deposit of a letter in the execution of a scheme to defraud. Weeber
In the first count it is charged that the defendants, on May 21, 1902, devised a scheme to defraud. This scheme is described in detail, and in conclusion it is alleged that the defendants did “then and there,” in execution of this scheme, place in the mails at Cincinnati a letter, a copy of which is given. The letter is dated May 21, 1902, and addressed to Hildebrant, one of the persons it is averred the scheme was devised to defraud. It is clear the pleader intended to charge that the scheme was devised on the day the letter was dated and mailed. In the body of the indictment there is the averment that the defendants intended to obtain from Hildebrant and others, between January 1, 1902, and May 23, 1902, large sums of money, namely, more than $200,000, on the representation that they would use it in betting upon horse races. The claim is that this paragraph vitiates the indictment for repugnancy, because the scheme devised on May 21, 1902, could not be carried into execution between January 1, 1902, and May 23, 1902. But this paragraph is not connected by averment with the scheme to defraud described in detail. It stands alone, is inessential, and may be rejected as surplusage. Lehman v. U. S. (C. C. A.) 127 Fed. 41, 45. Doubtless the pleader, although aware that the defendants had been operating the scheme from January, hesitated to charge that they devised the scheme in January for the purpose of defrauding Hildebrant, whom at that time they did not know and could not have in mind. Out of abundance of caution, he charged that the scheme to defraud Hildebrant was devised the day they wrote and mailed him the letter.
There is no merit in the objection that the indictment does not charge the offense in positive terms. The intention to make false and fraudulent representations by means of circulars and letters transmitted through the mails, and thus obtain money from the credulous, constituted the scheme itself.
The objection that on its face the scheme was impossible of execution, and therefore should have deceived no one, is without merit. Weeber v. U. S. (C. C.) 62 Fed. 741. Schemes to defraud depend for success not on what men can do, hut upon what they may be made to believe, and the credulity of mankind remains yet unmeasured.
Finally, it is urged the scheme involved a gambling transaction forbidden by the laws of Ohio, and that the defendants ought not to be prosecuted for not carrying it out. It is not charged that the race tracks were in Ohio, and it is not clear that the betting had to be done in Ohio. But, however this may be, the defendants were not prosecuted for failing to bet on races, but for using the mails in executing a scheme to despoil the public. The betting was but a pretense. If they had het the money, they would be in no better plight, for they could not have bet it so as to enable them to redeem their promises. They knew this from the start.
2. It is claimed that the trial court erred in limiting the number of the defendant’s witnesses to be subpoenaed at the government’s expense to four upon each particular point named in the defendant’s praecipe. This was within the discretion of the court, under section
3. The record shows that the defendant was arraigned and pleaded “not guilty,” but afterwards, on leave granted, he withdrew this plea to file the motion to quash and the demurrer. They being overruled, he went to trial, the record not showing whether he again pleaded “not guilty.” An Ohio case (Hanson v. State, 43 Ohio St. 376, 1 N. E. 136) is relied on as holding that a record is fatally defective which does not show an arraignment on the indictment before trial. But this record does show such an arraignment. He did plead “not guilty.” That plea was only withdrawn for the purpose of filing the motion and demurrer. The order shows that it was not finally withdrawn, but only formally for the special purpose. These having been overruled, he was remitted to his plea of “not guilty.” Nothing was left except to plead “guilty” or go to trial. Naturally, he did the latter.
4. Eight witnesses were permitted, over the objection of the defendant, to testify to transactions with him prior to May 21, 1902, when it was alleged the scheme was devised. It is urged a variance is shown, because these persons were not named in the indictment; and, besides, that their testimony should have been excluded. The record does not show that the question of variance was presented to the court below. If they had been entrapped before May 21, 1902, evidently the scheme devised on that day was not intended for them, and the grand jury could not properly have included their names as persons whom the scheme of May 21, 1902, was devised to defraud. Their testimony was objected to on the ground that it was not responsive to the allegations of the indictment, and it was admitted because it was introduced and tended to prove the fraudulent character of the scheme which the defendant was operating. The court rightly refused to limit the government to the precise time when the indictment averred the scheme was. devised to defraud the person to whom the letter was mailed. A like scheme had been in operation for months. The scheme charged in the indictment was but a continuation of this. It was entirely proper to introduce evidence of its character as reflecting upon the nature of the scheme the defendant was engaged in executing when he mailed the letter in question.
5. The court refused to permit the defense to introduce in evidence a number of loose sheets of paper, containing figures about horse-races, which the defendant, who was on the stand, could not identify or explain. These papers did not appear to be original records, or copies of original records, and they were rejected on this ground. We think the court was right in excluding them. They were not properly connected with O’Hara’s transactions in carrying out the scheme under consideration. In no way were they identified as records or copies of records of his transactions.
These are the only assignments of error which, in our opinion, merit consideration.
The judgment is affirmed