Thе indictment laid the scheme and conspiracy—for there is no substantial difference between the two when more than one are involved—as follows. Lyons and one Jerome Collins organized two corporations which they called Bureaus, by which through the press and by emissaries they got in touch with persons who had lost money in stocks, and who had, or thought they had, claims against the sellers. They told the claimants that they could secure for them a settlement of their demands, and procured confederates to appear as the sellers and offer to convey lots of land to them in compromise. In these negotiations they attributed a higher value to the lots than they believed them to have, and said that they could sell them in a short time at an increased price, knowing they could not. By these deceits they got the claimants to pay to them the difference between the false value of the lots and the amount of their claims. All this was a deliberately planned scheme to defraud; the lots wеre of little value; they had not in fact approached the sellers; the supposititious sellers were not real. Rowe and Michael Collins were confederates who assisted in the sale of the lots. The proof came chiefly from onе Kliefeld, another confederate, though not indicted; he was corroborated by a number of those practiced upon. The substance of the charges were proved beyond question and the case should clearly have gone to the jury, so that the only questions which can arise upon the appeals are those touching the indictment and the regularity of the trial.
The first is of a variance. Evidence was admitted that part of the plan was to tell the claimants that there were mоrtgages upon the lots, which it was necessary to release. Though there were in fact such mortgages, the defendants represented them as greater than they were, and required of the claimants a larger amount than was necessary for the rеleases. This was -not laid in the indictment, and is the variance alleged. Literally it was; the evidence cannot be defended on the theory that it merely proved intent, and was competent because collateral transactions may be admittеd upon that issue, as in cases of receiving stolen goods. The deceit as to the mortgages was a part of the scheme, though not as laid in the indictment, a term of the actual criminal agreement; and the proof varied from the charge pro tanto. But such variances have long been disregarded in trials for conspiracy, though apparently pleaders still try to fend against them by
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alleging that the details specified were only “part of the scheme”; which would not serve if the point werе a good one, since defendants are entitled to a true statement of the agreement. The answer is that as to the conspiracy a strict correspondence between pleading and proof is not required [Schouweiler v. U. S.,
The indictment is. itself challenged, because as part of the fraud, it laid promises to procure sales of the lots at an advance. The objeсtion is ill taken. Promises, if made without intent to perform, have for long been regarded as frauds in' such prosecutions. Durland v. U. S.,
The indictment did not allege that the claimants suffered any loss. In Miller v. U. S. (C. C. A.)
Coming to the conduct of the trial, the defendants complain of the charge upon the question of fraud, especially in relation to value, and the promise to sell the lots quickly. In substance what the judge said was that while the defendants might buy and sell land at their own price, they might not do so by “fraud.” Mere expressions of opinion as to its value or their ability to sell it, would not charge them; but it was otherwise if “fraudulent representations were made to induce the purchaser to part -with his money and such was (sic) calculated to mislead a reasonably intelligent person.” The question was whether they had had “a dеliberate purpose * * * to defraud.” This was enough for the purpose, though somewhat scanty. “Fraud,” as colloquially used, implies some kind of cheating, and cheating, ordinarily at any rate, involves deceit. Especially when contrasted, as the language *750 was, with the right to sell one’s own'as one chose, the jury could not have been misled as to the essential fact. To be told that opinions or promises are innocent unless made with a deliberate purpose to defraud left open no rеasonable doubt that the defendants must have disbelieved the opinions they uttered, and not meant to perform the promises they made. It would indeed have been better to use the language of some of the requests to charge, which put the law mоre clearly, but these were scattered among one hundred and twenty-four in all, some of them, though which does not appear, inaccessible, because presented just as the charge began. Unless the judge plainly misconceives the structurе of the ease, or misdirects the jury, requests to charge are of minor importance. In multitude they become an abuse; if counsel insist upon multiplying them unduly, they must be content with summary consideration. We will not reverse a case well tried in the main, by rummaging through a wildеrness of verbiage, which serves no other end, however well meant, than to set hurdles for the judge to leap.
This concludes all the points which it is necessary to discuss except as to the defendant, Michael Collins, who was convicted only on the сonspiracy count. He first raises the point that as to this it must be shown that the conspirators contemplated the use of the mails (Farmer v. U. S.,
His connection with the conspiracy within three years of the finding of thе indictment requires a further statement of facts. Until October, 1925, Lyons and Jerome Collins used only the Equitable Construction Company, with which Michael Collins was connected, to dispose of real estate. Later, when all of its land had been disposed of, Rowе formed a second company, which in turn was used. The evidence was amply sufficient to implicate Michael Collins in the sales of the Equitable Company, but there was nothing to show that he had part in any others, and indeed there was testimony that he had not. As the indictment was found on June 23, 1920, more than three years later, the question comes up of the statute of limitations. In answer the prosecution proved the following facts: One, Frank, had bought plots of the Equitable Company in April, 1925, for which he paid in installments, еxtending for more than a year, the last being in July and August, 1926. Frank was not called, and it did not appear directly that he was one of the victims of the scheme. However, as we have said, the system had been for the bureaus to send the claimants to the land holding сompanies to buy lots in settlement of their claims, and Michael Collins was concerned in the sale of no land for ,the Equitable Company except to persons so referred to it by the bureaus. Frank like the others had originally gone to the bureaus, whiсh recommended him to the Equitable Company, of which he bought. Moreover, it was the practice to divide the net profits into five parts of which Michael Collins got a fifth, the cost of the lots to the Equitable Company being first deducted. On July 29, 192,6, he got a chequе from the company of $122.50, which was a part of the installments paid by Frank. It did not directly appear that this was a fifth of any sum then divided, but the practice just mentioned permitted this inference; certainly it was part of the Frank money.
From this evidence a jury might conclude that Frank had gone to the bureaus in response to solicitation from them, according to their practice; that they had sent him to the Equitable Company to buy lots which were to be in settlement of his claim, and that Collins, who shared in the usual way in thе profits from these lots, had been implicated in this sale. The bureaus were engaged only in the supposititious settlement of claims; customers did not come to them to buy land. Collins and the Equitable Company had not sold stock to any of their customers, exсept that in one case Kliefeld had done so, at the beginning of, his connection with the scheme. So far as appears Frank had no claim against them. To excuse Collins as to this transaction we must suppose that, having come to the bureaus to settle a claim, Frank was sent to the Equitable Company to buy land as an independent ventura This is too unlikely to be taken seriously. True, it was not shown that any of the defendants had *751 overvalued Ms lots, or told him that they would be quickly sold, but Collins, or the Equitable Compаny, must have posed as persons settling his claim. Moreover, since Frank paid some four thousand dollars for the lots and this was divided among the conspirators, it is again most probable that he had been told that their value was that much, plus the amount of his сlaim. The transaction cannot bo broken from the series of which it bore so many of the indicia, and treated as though it stood alone. Almost certainly it was only an instance of the usual dealing, and if the jury thought so, that was enough, for any modicum of doubt is for their sole determination. Thus his division of the profits on July 29, 1926, was in pursuance of the conspiracy, quite independently of whether the affirmative proof was enough without it to dissociate Mm from the others after October. The evidence as to an earlier cheque for $62.50 is not so strong, but it was competent against him, and at least tended to confirm the inferences to be drawn from the later. The indictment was found in season.
Judgments affirmed.