68 F. 347 | S.D. Cal. | 1894
One of the constituent elements of the offense denounced by the statute upon which the indictment in this case is based is the intended use of the United States mail in aid or furtherance of the fraudulent scheme. It is therefore essential that the indictment allege directly, and not inferentially or by way of recital, that the scheme included the intended use of the mail. U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct. 571; Brand v. U. S., 4 Fed. 394; U. S. v. Flemming, 18 Fed. 908; U. S. v. Wootten, 29 Fed. 703; U. S. v. Finney, 45 Fed. 42; U. S. v. Smith, 45 Fed. 562; Weeber v. U. S., 62 Fed. 740. From a careful examination of the indictment, I am unable to find any direct allegation that the fraudulent scheme that the defendants are therein alleged to have devised included the use of the post office of the United States in its aid or furtherance. It is alleged in more than one place in the indictment that, in pursuance of the alleged scheme to defraud, the defendants placed and caused to be placed in the United States post office at Los Angeles the letter set out in the indictment, and also that the letter so deposited was to further and effect the object of the conspiracy, which is alleged to be “to misuse the post-office establishment of the United States by devising a scheme to defraud.” In all of this there is no allegation that the fraudulent scheme itself included the intended use of the United States mail, which element, as has been said, is an essential constituent of the statutory offense. For this reason the court is obliged to instruct the jury to render a verdict of not guilty.
