267 F. 665 | 8th Cir. | 1920
The plaintiffs in error, referred to hereinafter as the defendants, prosecute these writs of error to secure a reversal of the conviction and sentences for violating section 37 of the Penal Code (Comp. St. § 10201), conspiring to violate section 215 of the Penal Code (section 10385). There were a large number of other persons charged as defendants in the indictment; some were dismissed, and a number of others were tried with the defendants and found guilty; but these three plaintiffs in error are the only defendants prosecuting writs of error. While a separate writ of error was secured by each of them, they were submitted on one record and argued as one cause; the evidence against all being practically the same.
The indictment contains only one count, and charges the defendants with conspiring in the county of Douglas, in the Omaha division of the district of Nebraska to violate section 215 of the Penal Code, in devising and intending to devise a scheme and artifice to defraud all such persons who could or might be induced by means of the fraudulent and false device, representations, pretenses, and promises, hereinafter mentioned, to become purchasers of horses from the U. S. Eive Stock Company, a corporation organized under, the laws of the state of Nebraska; that for the purpose of carrying the fraudulent scheme into effect they placed and caused to be placed in the post office of the United States at Omaha, Neb., and in divers other post offices of the United States, to be sent and delivered by the post office establishment of the United States, certain letters, writings, and advertisements in newspapers. It then describes the fraudulent scheme and artifice to have been that the conspirators organized and caused to be organized a corporation under the laws of the state of Nebraska, in the name of U. S. Eive Stock Company, having its principal place of business at Omaha, in the state of Nebraska, with a pretended capital stock of $200,000, which they would fraudulently and falsely claim and represent to be of the value of $200,000; that the nature of the business to be transacted by said corporation would be to buy, sell, breed, and raise live stock of all kinds and descriptions, and engage in certain other businesses, not necessary to set out; that •they then pretended to be the owners of large numbers of horses, located on a range in Coconino county, state of Arizona; that they would represent the horses were of a value of not less than $50 per head, averaging in weight from 900 to 1,200 pounds and upward; that said horses were in part Perdieron, Hamiltonian, and Belgian breeds, and among them were a number of valuable stallions; that said horses were running wild upon the said range, but were easily accessible, and could be readily caught and reduced to possession at very little expense by purchasers'; that they would malee pretended
It is then charged that the capital stock of said corporation was of little or no value, and was not intended to be any part of the business ¡o be transacted by it, as stated in the articles of incorporation; that neither of the defendants, nor the U. S. Live Stock Company, owned or possessed any considerable number of horses in said Coconino county, Ariz., nor elsewhere; that they owned less than 500 horses, which had been running wild upon said range for many years, were practically worthless, even if they could be secured, all of said horses being so wild and untamable as to render it impossible to secure them, and all of which were at the time incumbered for more than their value; that there were no horses oí Perdieron, Hamiltonian, or .Belgian breeds, or a.ny stallions of any appreciable value; that all of the representations made by them to purchasers were false, as they well knew, and were intended by the conspirators for the fraudulent purpose, to deceive intending purchasers, and defraud them of large sums of money and properly of great value. It then charges 12 overt acts of the use of the mails, naming persons to whom the letters were sent through the mails, and advertisements in a number of newspapers published in a number of cities in different Western states, which were largely circulated through the mails.
A demurrer to the indictment was by the court overruled, and upon a trial to a jury a verdict of guilty was returned against these defendants and a number of others, who are not prosecuting writs of error.
Under rule 11 (188 Fed. ix, 109 C. C. A. ix) the court, at its option, may notice a plain error not assigned. Nor will the court refuse to notice a substantial error committed during the trial, when the accused’s liberty is involved, although no exceptions were taken, nor included in the assignment of errors. But it is only in a clear case, to prevent a miscarriage of justice, that an appellate court will consider an alleged error, not called to the attention of, and not paused on by, 4110 trial court. Gillette v. United States, 236 Fed. 215, 149 C. C. A. 405. If it appears from the entire record that the accused is dearly guilty, errors not excepted to will afford no ground for reversal. Lt
“The only position the court can take at this time is to admit the testimony which appears to be relevant, and allow the defendants exceptions, and that our attention will be called to any link in the testimony, or any insufficiency in the connecting up of the links of the government’s testimony. And it seems-to me important that some record be kept by the counsel for defendants, and the court’s attention called, if the testimony is not connected up.”
In another instance the court, in overruling a similar objection, said, “I assume that the government will connect him up with the defendants;” to which the counsel for the government replied, “We _will certainly do so;” 'and later did connect the defendant objecting with the other defendants. This was 'a matter of judicial discretion, with which appellate courts will not interfere. Kansas City Star v. Carlisle, 108 Fed. 344, 366, 47 C. C. A. 384; Spencer v. Read, 217 Fed. 508, 516, 133 C. C. A. 360, 368.
“As has been frequently said, great latitude is allowed in the reception of circumstantial evidence, the aid of which is constantly required, and therefore, where direct evidence of the fact is wanting, the more the jury can see of the surrounding facts and circumstances, the more correct their judgment is likely to be. ‘The competency of a collateral fact to be used as the basis of legitimate argument is not to be determined by the conclusiveness of tho inferences it may afford in reference to the litigated fact. It is enough if these may tend, even in a slight degree, to elucidate the inquiry, or to assist, though*669 remotely, to a determination probably founded in truth.’ * * * The modern tendency, both of legislation and óf the decision of courts, is to give as wide a scope as possible to the investigation of facts. Courts of error are especially unwilling to reverse cases, because unimportant and possibly irrelevant testimony may have crept in, unless there is reason to tliink that practical injustice has been thereby caused.”
No exceptions were taken to the charge of the court, and a careful reading of it convinces that no error was committed by the court. The law was stated correctly, and the issues of fact fairly and impartially submitted to the jury. The only special request made on behalf of the defendants, and by the court denied, was for a directed verdict of not guilty. Without setting out the voluminous testimony (the trial lasted 24 days), we are convinced that there was substantial —in fact, we may say conclusive — evidence of the guilt of the defendants.
“Or any other horses in any brand I own on the range. * * * The above horses are sold running on the range in Coconino county, Arizona, and are io be gathered and loaded at the second party’s [the purchaser’s'! expense. * * It is further understood that other parties having horses in the above hands of horses have the same rights to gather their horses as the party of the second part.”
There were a large number of letters sent through the mails by the defendants, some in the name of the U. S. Live Stock Company, others in the name of the Omaha Land & Investment Company, another corporation controlled by them, and some in the names of some of these defendants. Most of the letters were in reply to inquiries from parties, who had read the advertisements published in the newspapers, which were received through the mails; that, for the purpose of inducing the intending purchasers to buy these horses, they had photographs taken of a number of fine large horses, none of which were on or from the range in Arizona. At the time these photographs were taken no brands were on these horses, and the evidence shows these
“Whether prejudice results from the erroneous admission of evidence at a trial is a question that should not be considered abstractly or by way of detachment. The question is one of practical effect, when the trial as a whole and all the circumstances of the_ proofs are regarded. * * * It is manifest that he was not prejudiced by the admission of the testimony to which reference has been made.”
This conclusion makes it unnecessary to consider whether the testimony objected to was relevant or material. We find no error in the record, and the judgments are affirmed.
