45 F. 561 | E.D. Wis. | 1891
The Revised Statutes (section 5480, as amended by 25 St. 873) provides that — ■
“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 person by means of the post-office establishment of the United States, or by inciting such oilier person to open communication with the person so devising or intending, shall, in executing or attempting to execute such scheme, deposit in the post-oflice for transmission by mail any letter, packet, writing, circular, pamphlet, or advertisement, or shall receive any such therefrom shall bo punished,” etc.
Subsection 2 of section 5480, as amended, declares that — -
“Any person who in and for conducting, promoting, or carrying on in any manner by means of the post-office establishment any scheme or device as above mentioned, or any other unlawful business whatsoever, shall use, assume, or request to be addressed by any fictitious, false, or assumed title, name, or address, or name other than his own proper name, or shall take or receive from the post-office any letter, postal-card, or packet addressed to any such fictitious name, shall be punished,” etc.
The indictment contains three counts, — the first two preferred under the first provision of the section, the third count under subsection 2'. The defendant demurs separately to each count that no offense is stated within the comprehension of the statutes to which the indictment is addressed. The first two counts are alike, except as to the time of the offense, and may bo considered together. It is therein charged that the defendant devised a scheme to defraud various persons, and particularly ■- — -, out of a large sum of money by means of false pretenses and fraudulent representations, with intent to obtain such money without consideration,
“Through newspaper advertisements, circulars, and letters, to be sent through the post-office establishment of the United States, that he was a Chinese physician, well skilled in the science of medicine, and possessed superior knowledge and abilityin healing and in prescribing remedies for various bodily diseases of-and of others, and that he possessed certain rare Chinese herbs and medicines of great curative power and value in the treatment of diseases whereof-- and others were afflicted, and that for certain monetary consideration to be paid him he could and would cure-and others of their diseases by means of such herbs and medicines to be prescribed by him, and thus by false pretenses and representations to induce-and others to pay him large sums of money, without other consideration therefor, and to convert the same to his own use;'the defendant well knowing, as the facts were, that he was not a Chinese physician, or a physician of any kind; that he had no skill in the science of medicine; that he had no special knowledge or ability in treating or prescribing remedies for the diseases of- or of others; that he possessed no Chinese herbs or medicines; that the pretended Chinese herbs and medicines had no curative power or value whatever in the treatment of the diseases of-or others; that he could not cure her or them of their diseases; and that he intended to obtain her and their money by the stated false pretenses and fraudulent representations, without giving other consideration therefor, and to convert such money to his own use.”
The indictment then proceeds to state that the defendant—
“Having theretofore devised, as aforesaid, the aforesaid scheme to defraud, to be effected by opening correspondence with said-and said other persons by means of the post-office establishment of the United States, and by inciting the said-‘and said other persons to open communication with him,” did, in and for executing said scheme, and in attempting so to do, on, etc., deposit in the post-office, to be sent to the said-, a certain letter, etc.
It is objected to these counts of the indictment (1) that the charge is defective, in that it is not alleged that it was part of the scheme that it should be effected by opening or inciting to correspondence by means of the postal establishment; and, if this objection be untenable, (2) that the scheme alleged, although designed to be accomplished by means of the postal establishment, fails to disclose a fraud upon any one. _
The, constituents of the offense are three in number: (1) The scheme to defraud; (2) as an essential part of the scheme, the opening, or design to open, correspondence by mail; (3) in execution of the scheme, the deposit in or taking from the post-office a letter. U. S. v. Wootten, 29 Fed. Rep. 702; U. S. v. Hoeflinger, 33 Fed. Rep. 469.
The purpose of the law is to prohibit mail facilities in aid of fraudulent schemes. It is not clear why the design to use the mails was required as a constituent element of the offense. Thereby the statute measurably defeats its purpose, since the mail may be used in aid of fraud
The third count states the scheme to defraud as declared in the other counts, and then charges that in conducting, promoting, carrying on, and executing said scheme through correspondence by mail the defendant used, assumed, and requested to be addressed oilier than by his own proper title, name, and address, to-wit, by the fictitious, false, and assumed title of “Gun Wa.” This count is framed under subsection 2 of the statute, as amended. The subsection forbids the use of an assumed name in the execution of any scheme or device mentioned in the principal section, or any other unlawful business whatsoever. Failing to properly allege a scheme within the intendment of the principal section, the count under consideration cannot be sustained, unless it can be held to state an