120 F. 236 | 7th Cir. | 1903
after the foregoing statement of facts, delivered the opinion of the Court:
The record does not disclose that any person to whom the letters were sent, redeemed any of the rings on account of any sentiment connected with the ring, or on account of any sentiment connected with the person who was supposed to have pawned it. It is possible that the recipients of the letters may, under misapprehension of the identity of the writer, have supposed the writer to have been some, past time friend in trouble; but no specific proof of that kind was offered, nor does the indictment charge that such was the controlling motive, either of plaintiff in error in sending the letters, or of the persons receiving the letters in sending their money.
The record does not disclose that any of the rings, received in return for the money forwarded, was worth less than the money forwarded. Indeed, it is admitted, by counsel for the government, that the retail price of the rings was in all cases equal to the money forwarded. There is therefore, no specific proof in the record, that the plaintiff in error intended to obtain from the parties addressed the sums of money named, without furnishing to such persons, rings equal in value to the sums so sent. But this is the gist of the fraud charged in the scheme set forth in the indictment, and, the proof failing, the charge must fail.
It is insisted, however, that at common law and in civil and equitable cases, it is fraud to obtain money or property, by any false rep-
The question thus mooted would be interesting, if it'were fairly involved in the case. But it is not. The indictment makes no charge of fraud in that respect. The plaintiff in error .could not be put on trial for a fraud not set forth in the indictment.
It appearing therefore, that the defendant has been convicted without proof of any scheme with which he is charged in the indictment, the judgment of the District Court must be reversed, and a new trial granted.
