68 F. 348 | S.D. Cal. | 1895
There are three counts in the indictment, but, so far as concerns the demurrer, they are alike, and may be considered together. The objections urged to the indictment are that the averment as to the devising of the fraudulent scheme alleged against the defendant is by way of recital, not direct statement, and that there is no charge whatever, unless it be by implication or inference, that the defendant intended, as a part of such scheme, to effect the same by opening correspondence through the postal establishment of the United States. The averment in question is as follows:
“That Benedict Long, late of the Southern district of California, heretofore, to wit, on the 1st day of January, in the year of our Lord one thousand eight hundred and ninety-five, having devised a scheme to defraud one J. IV. Strickler, to be effected by opening, correspondence and communication with said Strickler by means of the post-office establishment of the United States, * * * in the furtherance and execution of said scheme, did knowingly, willfully, unlawfully, and feloniously place and cause to be placed in the post office of the United States at Vista, San Diego county, California, a certain letter,” etc.
Section 5480 of the Revised Statutes provides as follows:
“If any xierson, having devised any scheme or artifice to defraud to be effected by either opening or intending to open correspondence or communication with any person * * C! by means of the post office establishment of the United States, shall, in and for executing such scheme or artifice, place or cause to be placed any letter * * * in any jmst office of the United States to be sent or delivered by the said post office establishment, or shall take or receive any such therefrom, such person so misusing the post offico establishment shall, upon conviction, be punishable,” etc.
Under this section the courts have repeatedly held that, to constitute the offense therein defined, three things are necessary: First, a scheme to defraud; second, as an essential part of the scheme, an intention, to effect the same by opening correspondence through the mail; third, the depositing of a letter in the mail or taking one therefrom, in execution of such scheme. Stokes v. U. S., 15 Sup. Ct. 617; U. S. v. Smith, 45 Fed. 561; U. S. v. Wootten, 29 Fed. 702.
If is unnecessary, however, to further review this line of authorities, since the supreme court of the United States, in the late case of Stokes v. U. S., above cited, has authoritatively" declared that:
“Three matters of fact must be charged in the indictment and established by the evidence: U) 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 peisou 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 requirement: is elementary that an indictment should allege with directness all the constituents of the crime it purports to charge. On this subject the supreme court of the United States .has spoken in emphatic and unequivocal language, as shown by the following. quotation:
“The general, and, with few exceptions, of which the present case is not. one, the universal, rule on this subject, is that all the material facts and circumstances embraced in the definition of the offense must be stated, or the indictment will be defective. No essential element of the crime can be omitted without destroying the whole pleading. The omission cannot be supplied by intendment or implication, and the charge must be made directly, and not inforentially or by tray of recital.” U. S. v. Hess, 124 U. S. 486, 8 Sup. Ct. 571.
The averment here that the defendant, “having devised a scheme to defraud one J. W. S trickier, to be effected by opening correspondence and communication with said Strickler by means of the post-office establishment of the United States,” seems to be more in tbe nature of a recital iban a positive allegation, and therefore, according to the authorities, is at least open to criticism. Assuming, however, without deciding, that (Ids defect is one of form, and not fatal, the more serious objection remains that the indictment fails to allege that it was defendant’s intention, as a part of Ids
In the case of Stokes v. U. S., supra, the indictment, which was held to be sufficient, alleged as follows:
“That the post-office establishment of the United States was to be used for the purpose of executing such scheme and artifice to defraud, as aforesaid, pursuant to said conspiracy, by opening correspondence with said persons, firms, and companies, unknown to the grand jurors, and by inciting said persons, firms, and companies and others, as aforesaid, to open correspondence with the said defendants by means of the post-office establishment of the United States.”
My conclusion is that the indictment does not charge expressly and with directness, if at all, that the fraudulent scheme comprehended an intention that the same should be effected by opening correspondence through the postal establishment of the United States, and, for that reason, is defective. Demurrer sustained.