143 F. 772 | 9th Cir. | 1906
after making the foregoing statement, delivered the opinion of the court.
1. The court did not err in denying the motion to quash the indictment; the United States Attorney having elected to proceed upon the third count and entered a nolle prosequi as to the other counts. The clause in the statute which permits the indictment to charge three offenses “when committed within the same six calendar months” only applies to the procedure in which the attorney shall prepare the indictment. It does not relate to the creation of the offense. The offense is created and perfectly described before this clause is inserted. It is evident that the plaintiff in error was not deprived of any essential right by the ruling of the court. In United States v. Nye (C. C.) 4 Fed. 888, 893, the court said:
“In all cases where there has been an improper number of offenses joined in an indictment, the court undoubtedly may, in its discretion, quash the indictment; but it is always addressed to the sound discretion of the court in a case of that character. It may, in its discretion, quash the indictment, or it may permit the prosecutor to nolle certain counts, or it may compel the prosecutor to elect which one he will proceed upon, so that the defendant shall in no sense be prejudiced in his defense.”
2. Did the court err in overruling the demurrer to the third count of the indictment? The principal objections urged thereto are set out in the statement of facts. In Stokes v. United States, 157 U. S. 187, 188, 15 Sup. Ct. 617, 618, 39 L. Ed. 667, the court said:
“We agree with the defendant that three matters of fact must be charged in the indictment and established by the evidence: (1) That the persons charged must have devised a scheme or artifice to defraud. (2) That they must have intended to effect this scheme by opening or intending to open correspondence with some other persons through the post-office establishment, or by inciting such other person to open communication with them. (3) And that, in carrying out such scheme, such person must have either deposited a letter or packet in the post office, or taken or received one therefrom.”
The contention of the plaintiff in error is that a letter which does not contain any of the representations which the count charges the scheme was to make in letters to be sent through the post office by the defendant could not be, in the language of the section, “in and for executing” such a scheme or artifice or attempting so to do, and could not be the third matter of fact which it is stated in Stokes v. United States, supra, must be charged in the indictment and established by the evidence to constitute an offense under that section. Neither that authority nor any others cited by plaintiff in error hold that, in order to bring the case within the provisions of the statute, the letter contained in the indictment must be such a one as would necessarily be effective in the execution of the scheme to defraud.
In United States v. Hoeflinger (D. C.) 33 Fed. 469, 471, it was claimed by the defendant that the indictment was defective because it was not alleged that the statements contained in the letter were false. The court held that this point was not well taken, and said:
*777 “The offense described In the Indictment consists in placing a letter In the mail in execution of a fraudulent scheme, previously devised, which is intended to be carried out through the agency of the post-office establishment. It is not essential that the letter written in aid of the scheme shall contain false statements. It can make no difference, therefore, as a matter of averment, whether the letter contained false statements or otherwise. The important question is whether a fraudulent scheme was concocted of the nature described in the indictment, and whether the letter in question was mailed in furtherance of that scheme.”
In United States v. Loring (D. C.) 91 Fed. 881, 886, it was held that it is not necessary that the contents of letters charged to have been placed in a post office in pursuance of a scheme to defraud should show the fraudulent character of the scheme. In Durland v. United States, 161 U. S. 306, 315, 16 Sup. Ct. 508, 512, 40 L. Ed. 709, the court said:
“We do not wish to be understood as intimating that, in order to constitute the offense, it must be shown that the letters so mailed' were of a nature calculated to be effective in carrying out the fraudulent scheme. It is enough if, having devised a scheme to defraud, the defendant with a view of executing it deposits in the post office letters which he thinks may assist in carrying it into effect, although in the judgment of the jury they may be absolutely ineffective therefor.”
These authorities show that the indictment comes within the rule ’announced in the Stokes Case, upon which the plaintiff in error relies. But another complete answer upon this point will be found in the fact that the letter under discussion does contain one or more representations which are alleged in the indictment to be fraudulent.
The court did not err in overruling the demurrer. The conclusion we have reached also sustains the action of the court in refusing to grant the motion made in arrest of judgment upon the same grounds as set forth in the demurrer.
3. A careful reading of the entire testimony clearly shows that the plaintiff in error is guilty of the offense charged in the third count of the indictment, and it therefore necessarily follows that unless the court erred in the admission of the testimony which was objected to, in overruling objections to the testimony of witnesses, in charging the jury, or in refusing to give instructions asked for by the plaintiff in error, the verdict of the jury and judgment of the court must be sustained. Did the court err in admitting certain letters and circulars in evidence? There are numerous specific assignments of error upon these points, a majority of which have been separately and specifically discussed in the briefs of the respective counsel. It would serve no useful purpose to pursue the same lines in this opinion. We shall endeavor, however, in a general way to cover the objections made, and to state briefly the principles applicable thereto.
An objection is made to each of certain letters offered and admitted in evidence, upon the ground that “there is no charge in the third count of the indictment that the defendant ever mailed this letter, nor a charge that letters were mailed by the defendant, other than the letter a copy of which is contained in said count.” It is admitted by the plaintiff in error that the letters may have been admissible to
“The scheme testified to was so dependent upon the mails for its success, and the evidence showed such a wholesale use of them, that an intelligent mind could reach no other conclusion than that such use was from the beginning contemplated by the persons who concocted the scheme. The circumstance that some of the communications between the swindlers and their victims were exchanged without the use of the mails at interviews with so-called ‘agents’ is wholly immaterial.”
In Balliet v. United States, 129 Fed. 689, 693, 64 C. C. A. 201, 205, there is an extended discussion upon points directly applicable to this case. The court said:
“The letters and telegrams in question were principally written by the defendant himself. They show that he exercised absolute control over the affairs of the White Swan Mines Company, Limited, whose stock he was engaged in selling. They further showed the manner in which he conducted the business of that company, and the use that he made of the money which he received from the sale of its stock. Some of the letters also contained representations that were made by the defendant for the evident purpose of inducing the sale of its stock. The other exhibits consisted principally of reports made by the defendant to stockholders of the White Swan Mines Company, Limited, and articles which the defendant had composed and caused to be published in certain newspapers and periodicals. * * * In a word, the articles in question [like the letters in evidence in this case] were well calculated to excite the cupidity as well as to deceive credulous and ignorant people, thereby inducing them to invest their means in purchasing the stock which the defendant was engaged in selling. The testimony in the case also shows that the defendant had been exceedingly industrious in giving a wide circulation to these articles. * * * The case proceeded upon the theory that fraud was the gist of the offense charged in the indictment, and that it must be made to appear that the defendant’s purpose from the beginning was to sell a worthless stock by means of false representations, or a stock which was less valuable than it was represented to be, and to appropriate the proceeds, or a part thereof, to his own use. This being so, we are of opinion that all of the exhibits above mentioned were properly received in evidence to develop the defendant’s purpose. The jury were entitled to consider all of the defendant’s acts and declarations in connection with the exploitation of the White Swan Mines, both before and after the letters mentioned in the indictment were deposited in the mail, for the purpose of determining with what intent the defendant had acted. In no other way could his purpose be established. Besides, the exhibits in question con*779 tained so much of exaggeration, and were put forth in such a form, as though they contained well-authenticated items of news, and with such a reckless disregard of the truth as would fairly justify the inference that they were intended to deceive, and were acts done in furtherance of a scheme to defraud by means of the mail. We think the trial court would have erred had it excluded the several. exhibits.”
The authorities heretofore cited show that it was not necessary to set forth in the indictment all the letters written by the defendant. All the statute requires is that a letter in furtherance of the scheme should have been deposited in the mail. It is optional on the part ■of the pleader to include more if he so desires; but it is not incumbent upon him to do so in order to permit him to introduce them in evidence. In the present case the indictment fully states facts sufficient to enable the defendant to make preparation for his trial. It was wholly unnecessary to set out in the indictment the evidence which the prosecution intended to introduce in support of the charges made in the indictment. As was said in Stokes v. United States, supra:
“It is difficult to see, nor do tbe defendants suggest, wbat other allegations were necessary to define the offense with greater clearness or certainty, and it is impossible that they could have been misled as to the nature of the charge against them. The rules of criminal pleading do not require the indictment to set forth the evidence.”
In addition to the points already discussed, special objection is made to exhibit 17, which is a printed circular prepared by Smith & Bull, who were induced to become agents for the sale of stock that the plaintiff was endeavoring to sell. It was prepared, signed, and distributed by Smith & Bull through the mails, and it is claimed that this circular was wholly irrelevant and inadmissible, and that the plaintiff in error could not be bound by any matter therein contained.
It may be admitted, for the purpose of this opinion, that, if the circular had been issued and circulated without the knowledge and consent of the plaintiff in error, he would not be bound thereby. Let us see what the facts are and what the law is, and remember that in the letters, written’or printed, and sent through the mails by the plaintiff in error, he was trying to entrap the unwary and to secure money from them on the faith of a scheme glittering and attractive in form, yet unreal and deceptive in fact, and known to him to be such. The evidence of Mr. Bull given at the trial shows clearly that some of the information contained in the circular was derived from letters and circulars forwarded to the firm of Smith & Bull by the plaintiff in error, and from talks had personally with him. The circular itself discloses a number of printed communications over the signature- of the plaintiff in error, which Mr. Bull testified were copied verbatim from original communications received from the plaintiff in error. The entire testimony shows that the plaintiff in error knew what was set out in the circular, that it was submitted to him, and that he examined it, indorsed, and approved it. In one of his letters he said, “Your new circular is thoroughly convincing to any one who is responsible, and is the best one I ever saw.” The circular was therefore properly received in evidence.
In Commonwealth v. Eastman, 1 Cush. (Mass.) 189, 215, 48 Am. Dec. 596, the court, in discussing the question whether or not certain letters not written by the party were admissible, said;
*780 “So far as these letters might’ have been shown by other proof to have-been acted upon or sanctioned by the defendants, so far they would have been competent evidence.” '
It appears from the record that there was but one circular issued by Smith & Bull. The witness Bull in his testimony said:
“There was never but one statement issued over the firm name, and anything that is in there in the way of telegrams or letters was added to it afterwards. There was simply one statement issued by the firm.”
The court first ruled that the circular would be admitted up to a certain page. Upon further testimony being given, and knowledge-of the plaintiff in error being shown as to the added parts, the court admitted the entire exhibit. In this we see no error.
The plaintiff in error claims that the court erred in admitting in* evidence the following letter:
“Oct. 29, 2. G. W. Rumble, Chronicle Bldg.—Dear Sir: Replying to yours of the 10th would say, we now have an opportunity to sell the ‘Amo’ mine-for $1,500.00. If you want it at that price you can have it. * * *
“Very respectfully, Geo. H. Fuller.”
The objection urged to this letter, in addition to others previously disposed of, is that it is not a letter written by the defendant, and is therefore wholly irrelevant and immaterial to the subject-matter under consideration. It will be conceded that a letter written to. the defendant, which was not answered by him, would not be admissible in evidence as tending to show an implied admission on his part of the-truth of the statements contained in the letter.
In Packer v. United States, 106 Fed. 906, 910, 46 C. C. A. 35, 39, the court said:
“It is also urged that the letter was admissible as a tacit admission by the accused of the truth of its statements; it having been proved that the accused did not reply to it. Admissions, of course, may be inferred from* silence as well as from express statements, but it has been uniformly held, by the courts that the failure to reply to a letter is not to be treated in a criminal or in a civil action as an admission of the contents of the letter.”
But in the case under consideration, like the circular issued by Smith & Bull, the letter does not stand by itself. Mr. Fuller was a witness at the trial, and from his testimony it appears that prior to-the time the letter in question was written there had been considerable correspondence between Rumble and himself as to the value of the Amo mine, of which Mr. Fuller was the president. From Fuller’s testimony the fact appears that the Sunset Mining Company never had any interest whatever in the Amo mine; that Rumble at one time had an option thereon to purchase it, but gave it up and ceased work; that Rumble had stated to him that he had received from the working of the mine $214.95 and had expended $9,580.90. In a letter written by Rumble to this witness June 8, 1900, he said: “I have recently had two assays made of ‘Amo’ stuff; one was black sand which-assayed 500 per ton.” In another letter, dated August 22, 1901, Rumble said:
“After having tested the ground of the ‘Amo’ in every conceivable place and manner, I have come to the conclusion that it would be a losing deal to continue further work on it. * * * I have recently secured an option to*781 ■purchase Foster’s entire property, also the property adjoining Foster’s and the ‘Amo,’ which, together with the ‘Amo’ and what I have, would make about 1,000 acres. * * * Should I buy them all, I would make it into a sheep ranch and go to raising alfalfa on portions of it where it can be irrigated.”
The letter under consideration purports to be a reply to a letter previously written by Rumble on October 10th, which letter was not offered in evidence, but it was stated by the witness that it had no reference to any sale of the stock of the Sunset Mining Company.
In the light of the facts disclosed by the testimony of Mr. Fuller, it is manifest that the plaintiff in error could not possibly have been misled to his prejudice. The facts of this case are in many respects different from those presented in Packer v. United States, supra, upon which the plaintiff in error relies. Here the letter was not written by one who claimed to have been defrauded, nor was it written after the transaction on which the charge against the plaintiff in error was based had closed.
The opinion in the Packer Case quotes with approval the language of the court, which we have heretofore cited, in Commonwealth v. Eastman, supra, and, among other things, says:
“The correspondence between Moody and the accused while the transactions evidencing the scheme to defraud were taking place was competent, because the letters were verbal acts constituting a part of the res gestee. It was also competent because the letters from the accused were admissions of fact contained in them, and a response to the letters of Moody and the latter were necessary to a correct understanding of the scope and effect of the admissions.”
All the letters tended to show the falsity of the alleged representations charged in the indictment to have been made by Rumble.
One other objection to the admissibility of another letter, Exhibit No. 55, will be noticed. This letter reads as follows:
“C. J. Haile, Fruit Grower. Vacaville, Gal., Nov. 18, 1901.
“Mr. F. E. Stone, Newkirk, Oklahoma, Ty.—Dear Sir: Owing to the recent death of my husband, I desire to realize on my Sunset Mining Go. stock, which pays 2% per month cash dividends. The company’s price for their stock is now $1.50 per share. They inform me that it will be very much higher within the next twelve months. My stock cost me $1.00 per share. Enclosed I send you one of their circulars, which I got at their office yesterday. I can have the stock transferred to your name.
“Respectfully, Mrs. O. J. Haile.”
The objection to this letter was that it was not shown that the defendant knew of its being written or sent, or had any connection with it. This objection would have been good if the objections raised were sustained by the facts. But the record shows that prior to the time this objection was made the witness was asked: “At whose dictation was this letter written? A. At Mr. Rumble’s.” She further testified that the plaintiff in error had envelopes and letter heads with the words, “C. J. Haile, Fruit Grower,” similar to the one in evidence, printed on them. The following questions were then asked and answered :
In the light of what has been previously said, further comment is unnecessary.
4. Did the court err in overruling the objections to the testimony of the witnesses? There are many assignments of error upon these points. Several of them relate to the testimony of the witness Bull, and most of them are governed by the principles heretofore announced. It is claimed that the court erred in refusing to permit counsel to interrogate the witness upon cross-examination as to how much of what is contained in the circular issued by Smith & Bull said witness gained from his own investigations when at the Old Glory mine. The objection of the government that this was not in .cross-examination was sustained by the court. It is true that this witness had stated in his examination in chief that the circular issued by his firm was based upon his own investigations, and also upon the representations made to him by the plaintiff in error, and that the government did not undertake to prove how much of it he gained by investigation and how much by information, and it ■ was upon this ground that the court held the question not proper on cross-examination.
The real objection to the question is that it was wholly irrelevant and immaterial to enter into the field of metaphysics and endeavor to scale up the quantum of information he received from the plaintiff in error, or from other parties. The controlling point was that he received some of the information contained in this circular directly from the plaintiff in error, and that the circular as a whole was indorsed, sanctioned, and approved by -the plaintiff in error.
With reference to the other objections to the testimony, it is only necessary to say that no error occurred in allowing this witness to state that he had sent a good many thousands of the circular in question through the mails, and that his firm had sold in the neighborhood of 4,000 shares of the Sunset stock at $2 per share, amounting in all to about $8,000. An examination of the indictment, in connection with the testimony, shows that these matters were material and relevant to the issues involved in this case.
It is argued that the court erred in permitting one P. S. Moore to answer the following question:
“Q. State whether or not the communications and correspondence which you and your father received through the United States post-office establishment induced you and your father to invest your money in the Sunset Mining Company’s stock. State whether or not that is the fact? A. Yes, sir; that is the fact.”
The contention of the plaintiff in error is that this witness cannot testify as to what induced his father to act. The record shows that his father was 85 years of age, and that he was disabled from attending the trial. The witness testified:
“Q. Now, Mr. Moore, I will ask you whether or not you personally attended to all of your father’s business in reference to correspondence with Mr. Rumble and the Sunset Mining Company, and everything connected
We are of opinion that the court did not err in admitting the testimony objected to.
5. The court did not err in refusing to give the several instructions requested by the plaintiff in error. The instructions in their entirety were intended to limit the jury to the consideration of only one letter, to wit, the letter set out in the third count of the indictment. This point was raised upon the sufficiency of the indictment, the admission of the circular prepared and circulated by Smith & Bull, and to certain letters. The instructions asked for were properly refused.
6. The objections to portions of the charge of the court are without merit, and have been heretofore disposed of. From an examination of the entire charge, it fully appears that the rights of the defendant were carefully explained to the jury in every particular, and the charge was in all respects proper, fair, and just.
The judgment of the District Court is affirmed.