18 F. 907 | N.D. Ill. | 1883
(charging jury.) The indictment in this case is based upon section 5480 of the Revised Statutes, which I will now read:
“If any person having devised, or intending to devise, any scheme or artifice to defraud, to be effected by either opening, or intending to open, correspondence or communication with any other person, whether resident within or outside of the United States, by means of the post-office establishment of the United States, or by inciting such other person to open communication with the person so devising or intending, shall, in and for executing such scheme or artifice, or attempting to do so, place any letter or packet in any post-offiee in the United States, or tako or receive any therefrom, such person so misusing the post-office establishment shall be punished,” etc.
The object of this statute was to prevent the use of the post-office establishment for fraudulent purposes. The postal system may well be considered as one of the most useful devices of our modem civilization, organized and supported at the public expense. It furnishes so cheap, expeditious, and certain a method of communication between persons in different parts of the country, and, by means of postal-treaties, in foreign countries, that the temptation to use it for the promotion of fraudulent schemes is very great. And, hence, con-
It is not necessary, in order to make out a case under the law, that the defendant shall be the inventor or originator of the scheme or artifice to defraud, as such scheme may be as old as falsehood. But if a person uses or attempts to use an old scheme or device for purposes of fraud by means of the mails, he is as clearly within the scope of this law as if he was the first to have conceived or thought of such scheme. To confine the operation of this statute to new schemes, only the actual product of the mind of the defendants, and not before conceived or used, would be too narrow a construction of the purposes of the act, and would allow old frauds the use of postal facilities denied to new ones. So that one arraigned for an offense under this act would only be required to show that the fraud was old, or not the product of his own brain, to secure his acquittal. This cannot be allowed. If a man adopts some old scheme which another devised, and acts upon it, he has made it his own for the purposes of this act. It is also not necessary to show, in order to make out this offense, that the defendants actually, with'their own hands, placed a letter or packet in a post-office. If it appears from the proof that it was done through their agency or direction, by an employe or agent of the defendants, employed and directed for that purpose, it is enough.
The indictment in this case contains 10 counts. The first, second, seventh, and eighth, sufficiently, in my estimation, charge an offense under this statute. The third, fourth, fifth, sixth, ninth, and tenth counts, in my estimation, are not sufficient to make out an offense under the statute, and before you leave your seats, and at this time, for that matter, you may be considered as rendering a verdict of not guilty, by direction of the court, upon the third, fourth, fifth, sixth, ninth, and tenth counts: This will leave only the first, second, seventh, and eighth counts to be considered under the proofs.
The first count charges “that Flemming and Loring, pretending to be
The gist of the fraud charged in these four counts of the indictment is the purpose of the defendants to convert to their own use the moneys -which they should induce and procure persons to send them, to be used as a part of the alleged “Fund W ” in speculating in grain, provisions, and stocks. It is not necessary that it should be proven that there was no such firm as Flemming & Merriam, nor that there was no “Fund W.” But the essential- element of the charge in the indictment is the fraudulent intent of defendants to convert to their ovm use the moneys which they should induce persons to send them for investment as “Fund W,” or a part of it. Nor is it necessary that it should appear in the proof that defendants intended to convert to their own use all the moneys so obtained. If it was their purpose to convert any part of the moneys to their own use which persons were to be induced to send them for investment and employment in “Fund W,” then the offense is committed.
I understood defendants’ attorneys, in their argument to you, to admit that the allegations of mailing and taking from the mail by defendants of letters and packets is substantially proven. That is, there is. no dispute but what defendants mailed, or received by mail, letters and circulars in execution of their scheme to induce persons to invest in the Flemming & Merriam “Fund W.”
It is not my purpose to recapitulate in detail the testimony in the case, as the same has been quite exhaustively discussed before you by counsel. It is enough to say that the government has called Rheiniman, of Reidsburg, Wisconsin; Crammond, of Eureka, Illinois; Schaeffer, of Eureka, Illinois; Mrs. Remington, North La Crosse, Wisconsin; Loudermilch, of Auburn, Illinois; Benford, of Washington, Illinois; Gibson, Rockford, Illinois,—all of whom testified that during the summer and fall of 1882, and some in December, 1882, and January, 1883, they had received circulars by mail, purporting to come from Flemming & Merriam, inviting them to invest or take shares in “Fund W;” that they respectively sent money to be so invested, and received by maii certificates purporting to be issued by Flemming & Merriam for shares in “Fund W,” and afterwards also received by mail, letters, statements, and other circulars relating to “Fund W.” These witnesses also, gave testimony tending to show that they received dividends substantially as promised by the circulars for some time after they took their respective shares.
The testimony for the government also tends to prove, and it is not contradicted by defendants, and may be taken as a conceded fact in the case, that about the twenty-eighth of January, 1883, in pursuance of orders of the postmaster general, the further delivery of registered letters and payment of money orders to Flemming & Merriam was stopped. And that the business of “Fund W” stopped very shortly afterwards, substantially by the thirty-first of January, or first of February. And government proof tends to show that no money was paid to shareholders, either in the form of principal or dividends, after such stoppage. Proof has also been given on the part of the prosecution tending to show that the dividends declared and paid to their shareholders were not the result of actual transactions or speculations, but that they were paid from moneys received from later subscribers to the “fund,” — that is, that those who subscribed early to the fund were paid dividends out of moneys coming into the hands of Flemming & Merriam from- later subscribers; that no actual dealings in grain, provisions, or stocks were made by défend-ants for the benefit of the fund, but that for the purpose of making a show of apparent losses, fictitious accounts were made of pretended dealings between Flemming & Merriam and the Public Produce, Grain & Stock Exchange and the Metropolitan Grain & Stock Exchange, and others engaged in business similar to that of these exchanges, so as to pretend that “Fund W” was all lost, or all of it
In Castle v. Bullard, 23 How. 187, the court, by Justice Cliffobd, said:
“Experience shows that positive proof of fraudulent acts is not generally to be expected, and for that reason, among others, the law allows a resort to circumstances ns tlio means of ascertaining the truth. 'Great latitude,’ says Mr. Starkie, ‘is justly allowed by the law to the reception of indirect or circumstantial evidence, the aid of which is constantly, required', not merely for the purpose of remedying the want of direct evidence, but of supplying an invaluable protection against imposition.’ Whenever the necessity arises for a resort to circumstantial evidence, either from the nature of the inquiry or the failure of direct proof, objections to testimony on the ground of irrrel-evauey are not favored, for the reason that the force and effect of circumstantial facts usually and almost necessarily depend upon their connection with each other. Circumstances altogether inconclusive, if separately considered, may by tlieir number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof.”
So, also, in Lincoln v. Claflin, 7 Wall, 138:
“Where fraud in the purchase or sale of property is in issue, evidence of other frauds of like character committed by tbe same parties, at or near the same time, is admissible. Its admissibility is placed on the ground that where*912 transactions of a similar character, executed by the same parties, are closely connected in time, the inference is reasonable that they proceed from the same motive. The principle is asserted in Cary v. Hotailing, 1 Hill, 317, and is sustained by numerous authorities. The case of fraud, as there stated, is among the few exceptions to the general rule that other offenses of the accused are not relevant to establish the main charge.”
The testimony in regard to the dealings of these defendants with “Funds IT and K” is therefore before you, and to be considered by you so far, and only so far, as it tends to show a fraudulent intent of defendants in procuring money to be sent them for shares in “Fund W.” Hoes the testimony as to the dealings of defendants with “Funds H áñd K,”'and the outcome of these funds, throwv any light upon the purposes of defendants in soliciting money for shares in “Fund W ?” So far, and only so far, need you consider this, branch of the case. Does the fact that all these funds were manipulated by substantially the same managers and the same methods, the same class of circulars and statements, the same kind of correspondence and promises, and that these funds came to substantially the same end; that “Fund K” was started and put before the public just before “Fund H” was said to have failed, and that “Fund W” appeared before the public just before “Fund K” was reported to have failed, — do these facts, when taken together, satisfy you that all these schemes were fraudulent; that “Fund K” and “Fund H” were fraudulent devices to defraud the persons who might be induced to send money for investment in them, and that, therefore, this fund was started for the same purpose, carried on to the same end, by substantially the sameipanagers ? This is the only light in which you are to consider this testimony. Does it throw any light upon the purposes of these defendants in the manipulation and presentation to the public of “Fund W ?” The substance of the proof on the part of the government then tends to show that the defendants used the “Fund W” scheme as a mere pretense to obtain money from the shareholders, intending to convert this money, or some part of it, to their own use. There is much proof on the part of the government as to the manner in which these funds were handled and lost which it is proper for you to consider, as tending to prove that in devising or operating these schemes, the defendants were actuated ’by fraudulent purposes. You are to consider all this proof together.
On the part of the defense, it is claimed, (1) as to defendant Loring, that he was not a member of the firm of Flemming & Merriam, but was only a clerk for them and employed upon a salary; (2) that the “Fund W” was in good faith invested in the purchase or sale of grain, provisions, and stocks, or, at least, invested in what are called speculations in grain, provisions, and stocks, mostly, as I remember the proof, in what is known as the Public Produce, Grain & Stock Exchange and the Metropolitan Grain & Stock Exchange, and was lost in due and regular course of business with those exchanges.
As to the first point, in regard to defendant Loring, there is proof
The government is required to make out its case, as to this issue of fraud, by proof so clear as to leave no resonable doubt upon your minds of the defendants’ guilt. I do not mean by this that the fraud must be proven by direct testimony, but the circumstances environing the defendants’ dealings with this fund must, when all considered together, stamp the transaction as unquestionably, undoubtedly fraudulent, such as leaves no other conclusion reasonable or tenable. If from the pooof you find that it was a part of the scheme or plan of defendants for defrauding these shareholders in “Fund W,” that the money should in some manner, not by buying or selling commodities, such as grain, provisions, and stocks, in good faith, get into these exchanges and bo held by them as apparent profit, then the allegations of fraud in the indictment are as completely sustained as if the proof showed that defendants had expended the money in the purchase of other property or still have it in their hands. Tou should, in the solution of this question of fraud, consider — First, the character of the scheme or plan as disclosed in the circular in proof. Does it hear upon its face and in its terms the evidence of an honest or a fraudulent purpose? Would honest men, knowing the risks and vicissitudes of business, promise such results as are promised in this circular ? Does your common knowledge of business and business affairs teach you that such promises could be made in good faith, and that parties making them had a right to expect that they could fulfill them? Second. There is proof on the part of the government tending to sIioav that dividends, which it is alleged were declared and paid, were reported in advance, — that is, that reports of the earnings or profits of the fund were made up before the expiration of the time purporting to be covered by such reports; such as, that, at least as early as the third week in January, a report of profits for the fourth week of that month was prepared to be sent out to subscribers. You are to say whether men who do business upon actual transactions can and do make reports of that kind. Third. It is an admitted fact that directly after the delivery of money orders and registered letters to Flemming & Merriam were stopped, the entire fund on hand was reported to be lost, and there is testimony tending to show that no payments have been made to shareholders since that time. It is right that you should inquire, in view of this fact, what necessary connection there was between the stopping of the receipt of more money
I hardly need say that if the testimony of Mrs. Miller, W. W. Miller, and Charles E. Hyde is believed, then there is direct evidence tending to establish the fraudulent character of defendants’ dealings with “Fund W.” But defendants insist-that this testimony is not worthy of belief; that Mrs. Miller’s testimony, standing alone, does not prove fraud as to “Fund W;” that W. W. Miller has been impeached, and that he also stands in the attitude of an accomplice in this fraud, who has been promised immunity from some part of the punishment which may follow a conviction on an indictment now pending in this court against him. The interest of an accomplice who turns state’s evidence, as it is called, is always to be considered
Testimony has been given tending to show that both Miller and Hyde have had reputations for truth and veracity in the community where they reside. This does not necessarily compel you to disbelieve them, because even bad men and notorious liars may tell the truth sometimes, and under some circumstances, and tho question after all is, have they told you the truth in this case? In the first place, is their statement so consistent with other proven facts as to impress upon you a conviction of its truthfulness ? secondly, do you find corroboration of their testimony from other witnesses, and the surrounding circumstances in evidence ? As I said before, you are the sole judges of the credibility of these witnesses, and must say, in the light of all the proof in the case, whether you are satisfied they have told you the truth. You are not obliged to accept their statements, and you are not obliged to disbelieve them, but you must consider them in the light of tho testimony and act as your judgments and your consciences convince you you should in the light of all the proof.
Something has been said during the progress of the trial in regard to the conduct of Mr. Bay, one of the witnesses for the government, and a government officer, which it seerns to' me it is proper I should allude to. The post-office department has on its staff a class of officers known formerly as special agents. They are now, by a later statute, denominated post-office inspectors. The duties of those inspectors are very fully stated in some regulations of tho post-office department which I will read to you. I will road regulation, section 18; also section 30. [Reading regulations, sections 18 and 30.] You see very comprehensive powers are delegated to these agents. They are charged with seeing that the mails are not abused, and the nature of the duty which devolves upon them is the duty of seeing that the mails are not prostituted to be used for fraudulent purposes. You will say then, in view of the powers with which Mr. Inspector Ray is clothed, under these rules, whether the testimony in this case disclosed any undue or improper zeal in tho performance of the duties which necessarily devolved upon him in the preparation and prosecution of this case. Do you see anything which, as a sworn officer of the government, exercising these high powers, he ought not to have
It comes back, then, to this, does the proof in this case, when all considered together, satisfy you beyond a reasonable doubt that these defendants intended to defraud the subscribers to “Fund W” of the money which those subscribers should be induced to send them ? Were the mails to be used for the purpose of effecting fraud, and were they so used? If you so find that defendants, or either of them, did so intend to defraud, then you should find the defendants guilty, or such one of them as devised or managed the scheme, without regard to whether his name appeared as principal or not. If, on the contrary, the testimony satisfies you that defendants intended to use and did use “Fund W” for the purpose of dealing in grain, provisions, and stocks, and that such fund was lost by such dealings in good faith, then defendants should be acquitted. So, also, you must be satisfied from the proof that at the time these subscribers to “Fund W” were induced to intrust their money to defendants it was defendants’ intention to convert such money to their own use; that is, if the fraudulent conversion was an afterthought, conceived and acted upon after the defendants had obtained the money, then you should acquit. If at the time they got the money — the time it came into their hands — they intended in good faith to carry out their scheme, and invest it, but afterwards, after they got it in their hands, then converted it to their own use, then the case is not made out under the statute.