United States v. McLaughlin

169 F. 302 | D. Minnesota | 1908

LOCHREN, District Judge

(orally). I think that my mind is pretty well made up regarding this indictment. The defendants are charged with having formed a conspiracy to defraud several corporations of Iowa, Minnesota, and Illinois, and it is alleged that this scheme and artifice to defraud these corporations was to be effected by the use of the post office establishment of the United States. The circumstances under which this conspiracy was entered into between these defendants are stated. That is that these several corporations are engaged in what is known as the "catalogue and mail order business,” in selling merchandise, including lumber, millwork, and other building material under the catalogue and mail order system, and that these defendants, well knowing the business in which these corporations were engaged, devised this scheme to defraud by soliciting and obtaining from said corporations catalogues and samples, and requesting price lists and estimates on spurious bills of lumber, and alleges the means that were adopted to perpetrate this alleged fraud; that is, by in each instance representing and pretending that they, the said defendants, were desirous of purchasing materials of these several corporations; and the indictment traverses these pretensions and representations, alleging that these defendants had no purpose of purchasing material of these corporations or of entering into any business relations with them. Then the indictment states the overt acts which are set forth in the indictment—several of them—one of them being a postal card signed by I. Nesbit Tate asking for samples, and another communication is signed by Theodore S. McLaughlin; both of these parties being defendants. There are other communications which are alleged to have been mailed by certain other defendants, although their names are not attached to the communications. I think that the indictment contains allegations that all of the communications were placed in the mails by one or more of the defendants.

I think that, when the indictment rests upon conspiring, confederating, and agreeing together, it is necessary that there should.be by one or more of the conspirators some overt act, and that if the conspiracy ceases without an overt act it does not constitute a crime, although when it is consummated it is the conspiracy rather than the overt act which-is the crime. It seems to me that an overt act must be an act which has a tendency at any rate to carry out the object of the conspiracy, or in some way tends to make it effectual. It may not be sufficient of itself to complete the offense, but it should have a tendency to do so. I do not imagine that any letter which could have no tendency to mislead the corporations which are the alleged victims could be claimed to be an overt act at all. It must be an act having a tendency to effectuate the object of the conspiracy.

I have looked over all these letters, and it seems to me that there is none of them which embraces the fraud alleged. That is, there is none of these letters which contains anything that could be tortured or construed into a representation of any kind that the signer of the letter, or any of the defendants, represented that he intended to purchase any materials from the corporations or any one else. Some letters ask for catalogues which, according to the indictment, contained a description of the merchandise, with prices; - others ask for samples. I think these are the two characters of these letters. But there is none of them that contains any statement whatever which, under any rule of construction, can be claimed to be a representation that the party writing intended to purchase from the corporations. Of course, it is well known that any party desiring to purchase goods would be interested in ascertaining where they could be got and the prices at which they could be obtained, and the mere fact that inquiries were made which would bring that information will not raise any presumption that there was an intention on the part of the party desiring the material to purchase from any particular person. It would be natural that there should be inquiry by the one desiring to purchase as to the character of the material and the prices, and that the intending purchaser should make such inquiries from many persons, so that he could be advised as to where to purchase and what character of material to purchase. And the mere fact that such persons should ask for catalogues or samples does not embrace any representation, in my opinion, that they desired or had made up their minds to purchase from any particular person or corporation. It Seems to me that the overt acts alleged do not support the charges of fraud which are the subject of the alleged conspiracy, and that they are, immaterial; that there is not in the overt acts charged in the indictment anything germane to the subject of the alleged fraud.

I think the demurrer should be sustained.