45 F. 195 | W.D. Mich. | 1890
(charging jury.) The indictment in this case consists of three counts, charging three separate and distinct offenses; and it is competent, in such a case, for a jury, if they find any of the counts proven beyond a reasonable doubt, to find the accused person guilty upon such count, naming it; and, if they find the respondent to be not guilty upon other counts, to render a verdict accordingly. The verdict must respond to all the issues in the case; and it may happen in any such case that one count may be established by evidence and others not. In such a cáse, the verdict must indicate what the fact, as found by the jury, is. In the present case, the first count in the indictment charges substantially, laying aside all mere verbiage, that the defendant, having formed a scheme to defraud, used the United States mail facilities for the purpose of carrying that scheme into effect. In substance that is the nature of the charge made in the first count. The particular plan or scheme that it is alleged in this count of the indictment he formed, and in pursuance of which he employed the United States mails,'was to represent to the public that he had for sale, and would sell to them, a grade of wheat known as “Everett’s High Grade Wheat,” and that the scheme or plan that he formed was to draw the public in by means of the use of the mails to send to him sums of money, for which he would send to them, in quantities according with the .prices named, this seed wheat, known as “Everett’s High Grade Wheat.” In that count it is charged that his scheme or purpose or plan was to defraud any and all persons who should apply to him for this seed wheat of their money. Now, I wish the jury to understand in what way this purpose or intention to defraud enters into a charge of such a character as this, in an indictment which is subject to trial in the United States courts. We do not have jurisdiction here, and cannot try the criminal charge ordinarily known as obtaining property by false pretenses. We have no authority to try any such matters as this. Those come within the jurisdiction of common-law offenses. But, incidentally, that matter becomes involved, in the inquiry here. The gist of the offense which we have to try is the
The second count in the indictment is one which relates to using the mails in furtherance of a scheme to defraud by getting customers to buy his blueberry plants; and it charges that the defendant formed a purpose to defraud the public by representing that he had blueberry plants to sell, and would sell them upon receipt of the proper sum. Here, again, it is not controverted, as the court understands, that the respondent used the mails in promoting his purpose; so the question you have to deal with is whether, in sending out these circulars, and making these repie ■entations to the public, lie intended to deceive and defraud it out of its money. Upon this subject, you are entitled, and ought, to take into consideration the nature of the article which he confesses to have supplied in response to these applications by customers. You will consider whether or not it was not represented by that circular, substantially, that he had a business, or a place whore he grew these plants, or that
The third count in the indictment charges, in substance, that the respondent formed a scheme to defraud, by sending circulars, advertisements, forms of advertisements, to various newspapers published throughout the United States, requesting them to publish these advertisements, send him a copy of the'same, together with their bill, and that he would thereupon pay such bill, when he really did not have the intention to pay therefor. Now, as in the other cases, it is necessary for the government to prove that he formed that scheme. It does not prove the case to show that the man did not in fact pay some bills which he promised to pay. That does not make a case, because the non-payment may come from misfortune, inability to pay, or from oversight. It may come from any of the contingencies which affect such business. It may be a matter of some consideration to you, in passing upon this third count, to note, if it be so, that the respondent failed to respond to letters which were addressed to him in reference to the payment of his bills. You must be satisfied upon your consciences that before he sent out these advertisements and these letters he had formed a purpose of defrauding whoever should publish these circulars, out of the payment for such publishing. As I said, it is not a case coming within the scope of this statute if, sending these circulars without any purpose to defraud the publishers, he did afterwards defraud them. The point is,