267 F. 412 | 6th Cir. | 1920
The plaintiff in error was convicted in the United States District Court for the Southern District of Ohio on both counts of an indictment charging him with using the United States mail in the furtherance of a scheme to defraud. The defendant hied a general demurrer to each count of the indictment, which demurrer was overruled by the court, and exceptions noted.
“December 1, 1919.
“Mr. Raymond P. Kaiglm, Nat’l War Work Council, X. M. C. A., New York City — Dear Mr. Kaiglm: Please pardon the delay in reply to your letter of November 20th, which has been due to my absence in Washington, looking after this company’s business with the government in cantonment heating. I am returning herewith the information blank you sent me, completely filled out as you request. You will also find the only available photograph of myself inclosed. Please see that this is returned to ine as soon as possible. I*414 am confident that my experience and information can be made of some use and value in association war work, and I hope you will give my application the fullest measure of consideration.
“Yours sincerely, • J. A. Underwood.
“JAU ESP”
Next follows a copy of the written recommendation purporting to have been made by Edgar A. Todd. This consists, of questions and answers,- undoubtedly on a blank prepared by the Young Men’s Christian Association for this purpose. The heading is as follows:
“Concerning: John Allen Underwood, 220 Green St., W., Piqua, Ohio.
“Filled in by: Edgar A. Todd, 726 N. Downing St., Piqua, Ohio.”
Then follow the questions and answers. The answers are extremely favorable to Underwood, and unequivocally recommend him to the managing officers of the Young Men’s Christian Association for honesty, ability, integrity, experience, character, religious affiliation, religious and social activities, and capacity to fill any important executive or administrative office.
The other paper, claimed to have been written by Underwood himself, is under the heading “Application Blank,” and consists of questions and answers. The answers to these questions are substantially all favorable to the applicant, particularly in reference to his education, habits, health, business ability, church affiliations, and experience in promoting educational and social activities. In response to the inquiry as to his present salary the answer is “$7,500.” As to age the answer is, “31 years.” The answer to question 11, “What salary would you accept in present emergency'work?” is “$2,500 and travel expenses.” Then in parenthesis the following: “Turn over, page 2.” On page 2 is the further answer to question 11:
“I am not taking any interest in the financial compensation of Assoc. War Work. I am willing to make any sacrifice in income in order to be of service. I have indicated the amount ($2,500 and traveling expenses) on the other side, because I figured I will require aoout that amount to pay insurance, taxes, and living expenses. I am willing to accept whatever the Assoc, believes is fair, and what it is accustomed to pay.”
In answer to question 35, “Give names and addresses of three other persons whom we may ask as to your experience and qualifications for this work,” the following appears:
“Edgar A. Todd, Treas. Atlas Underwear Go., Piqua, Ohio. Otto A. Simon, 313 N. Downing St., Piqua, Ohio. Paul J. Weayer, 410 De Balivuere, St. Louis, Mo. [Over.]”.
Eater in the paper is a further answer to questions 34 and 35 as follows:
“Any bank in Piqua can give you unquestioned reference as to my integrity, honesty, and reputation. The gentlemen whom X have mentioned know me personally and have for years.”
The indictment further avers that Edgar A. Todd did not then, or at any other time, make any such recommendation, either orally or in writing, and that the answers of Underwood to the questions in the application blank were untrue in reference to his age, the salary
It is claimed on behalf of Underwood that this count does not state with sufficient particularity the facts upon which the charge in the indictment is based. On the contrary, it would seem that it does fully state every fact and circumstance upon which the government expects to rely in the prosecution of this case. The more important question presented by the demurrer to this count is whether the facts as stated therein constitute the offense charged. Counsel for the government has, in his brief, fairly and clearly stated the natural and necessary conclusion to be reached from the reading of this count in the indictment. His statement in that respect is as follows:
“It must ho. admitted that the §2,500 per year and traveling expenses was not to be the direct result o!’ the alleged pretenses, but was to be compensation for services under the contract for the employment which he was attempting to secure by such pretenses.”
This statement concedes that the primary purpose of Underwood was to secure employment, and that the salary and. traveling expenses were merely incident thereto, and that in furtherance of his purposes -to secure such employment he made the false and fraudulent statements charged in the indictment. It is claimed, however, that the immediate purpose in the mind of Underwood necessarily included a purpose and intent on his part to defraud the Young Men’s Christian Association out of the compensation to be paid for his services under the contract of employment. There is no averment in this indictment that Underwood did not intend to perform any services, or that whatever services he might perform by reason of such employment would have been of no value or of materially less value to the Young Men’s Christian Association than $2,500 per year and traveling expenses.
It is claimed on behalf of plaintiff in error that, in the absence of such averments, the immediate purpose of the fraudulent scheme and false representation must control the construction of this count of the indictment, and proof that the fraud was practiced for the purpose of securing employment cannot be accepted as proof of the offense charged in the indictment, viz. to defraud the Young Men’s Christian Association out of $2,500 per year and traveling expenses, without averment and proof that such employment would necessarily have accomplished such result.
In many cases, perhaps usually, the intent to defraud the employer out of the salary to be paid would be so far incidental to and necessarily flowing from the intent to defraud the employer into giving employment that the two would merge, and proof of guilt of the latter
If it should be thought that the indictment is open to more than one construction, as to whether it charges intent to defraud in getting employment or intent to defraud in getting a salary, this doubt is removed by the charge of the court. The question submitted to the jury was sharply and clearly the latter one — the intent to defraud the Y. M. C. A. out of $2,500 in money.
_ At the time alleged in the indictment the Selective Service Law contained no provision whatever exempting an employe of the Young Men’s Christian Association from its terms and provisions. Had Underwood succeeded in securing employment with the Young Men’s Christian Association through any fraudulent scheme or artifice, the fact that he was so employed would not then in any way have operated to exempt him from military duty under the provisions of that act or in any way to hinder or delay the United States government in raising an army and navy for its defense.
It is claimed on the part of the government that it is not important that such result would not have been possible under the law, if in fact Underwood believed it was possible to secure exemption in this way, and that under this indictment the only thing important is the fraudulent purpose and intent of Underwood, regardless of whether such
In cases of that character the success of the plan depends upon the intelligence or lack of intelligence of the public or of the particular individual sought to be defrauded. In cases of this character the law is fixed and certain. The government could not be defrauded of its right to select Underwood for military duty by reason of his employment by the Young Men’s Christian Association. No presumption obtains that the government or that the officers charged with' the enforcement of the Selective Service Act did not fully understand the law under which they were acting.
On the other hand, no presumption obtains that Underwood did not know the law. Every citizen is presumed to know the law of the land in which he lives, and ignorance of the law is no excuse for an offense against its terms and provisions. Certainly the reverse of this proposition must be true; that is to say, that a citizen will not be held guilty of an offense he could not commit because of the fact that on account of his ignorance of the law he believed that an act perfectly lawful was an offense against the law. In other words, the presumption that all citizens know the law of the land in which they live obtains for the defense of the accused as well as for his conviction.
This count does not allege that the defendant was a male person between the ages of 21 and 30 years, or that he was a citizen of the United States or a person not an alien enemy who had declared his intention to become such citizen; so it wholly fails to state that he was liable to military duty under the Selective Service Act. In the case of Ruthenberg v. United States, 245 U. S. 480, 483, 38 Sup. Ct. 168, 62 L. Ed. 414, it was held, in a prosecution under the law requiring male persons between the ages of 21 and 30 years to register, that it was necessary to state that the delinquent was a male person between those ages, but not necessary to allege that he was a citizen of the United States or that he had declared his intention ito become such citizen; but that was upon the theory that “these matters go only to the liability to military duty and not to the duty to register.” In this case the question is as to the liability of the defendant to military duty, for, unless he was liable to such duty, he could not be guilty of any fraud in attempting to evade the same.
It is also claimed that the verdict is not sustained by the evidence. There is practically no conflict of evidence in this case. It is clear that the defendant did not deliver to the post office establishment of the United States the recommendation purporting to have been filled in by Edgar A. Todd, nor was it inclosed in the letter of December 1, 1917, with the application blank. On the contrary, the proof is positive and undisputed that this recommendation blank reached Mr. Todd’s home in bis absence; that his wife and daughter opened the same and wrote therein the answers to the questions; that these answers were without any consultation with Underwood, except as he wqs asked in reference to one or two questions regarding his business
In what we have said we have assumed that an attempt to get employment by making false statements, even though accompanied by an intent to render faithful service, would constitute the scheme or artifice to defraud- contemplated by section 215 of the Criminal Code (Comp. St. § 10385), and we likewise Rave assumed that the existence of such a scheme might be predicated upon a mere intent to violate a public criminal statute in a way that did not carry fraud upon or injury to any individual. Neither of these matters is involved in tire present case, in tire view that we have taken of other questions, and we do not intend to indicate any opinion upon either of them. -
For the reasons above stated the judgment of the District Court is reversed and remanded, with directions to sustain the demurrer to the second count of the indictment, and for further proceedings according to law.