Riddell v. United States

ROSS, Circuit Judge (after stating the facts as above). [1] The contention that the indictment is insufficient to state an offense under the provisions of section 215 of the Criminal Code, upon which it is based, is, we think, wholly without merit. Indeed, it is difficult to conceive of a more brazen attempt to defraud the unwary of their money than it sets forth. Durland v. United States, 161 U. S. 306, 16 Sup. Ct. 508. 40 L. Ed. 709; Oesting v. United States, 234 Fed. 304, 148 C. C. A. 206; Walker v. United States, 152 Fed. 111, 81 C. C. A. 329; Moffatt v. United States, 232 Fed. 522, 146 C. C. A. 480; Colburn v. United States, 223 Fed. 590, 139 C. C. A. 136; Spear v. United States, 228 Fed. 487, 143 C. C. A. 67. [2] It is true that neither of the counts under which the plaintiff in error was convicted set out the alleged fraudulent scheme in detail, but each of them refer to and make part thereof, as they properly may, the scheme set out in the first count. Blitz v. United States, 153 U. S. 308, 14 Sup. Ct. 924, 38 L. Ed. 725; Crain v. United States, 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097; Glass v. United States, 222 Fed. 773, 138 C. C. A. 321. The record shows that in the execution of the alleged scheme the company, under the directorship of its officers — Conway, Richet, and the defendant — secured many thousands of dollars, for which apts the two former have heretofore, upon a similar indictment, been convicted. The plaintiff in error insisted in the testimony given by him that he was entirely ignorant of the true character and situation of the lands in question, and, while admitting that he was a stockholder and the secretary of the company, testified that the stock that he held was for the benefit of Veasen, and that his only interest in the company was the salary he received as its attorney. That his private office adjoined and opened into that of the company; that he was active in the performance of his duties as its secretary, and himself framed or examined many of the letters, circulars, posters, and other papers issued by the company — was also admitted by him in his testimony, and there was on the part of the government much evidence given, tending to show that he was in fact a party to the alleged unlawful undertaking. That question of fact was, of course, left to' the determination of the jury by die trial court, and under fair and correct instructions upon the point, and was resolved by the jury against the defendant. There are but two more alleged errors occurring on the trial that we think need be specially mentioned. [3] It appeared from the evidence in the case that the company was organized for the purpose of exploiting the lands covered by the deed alleged in the indictment to have been executed by John Veasen and his Vvife April 25, 1910, but never delivered, and that in the fall of that year the company and its officers — Conway, Richet, and the defendant —ceased all efforts in regard to those lands, and transferred them to lands situate in Union, Wallowa, and Baker counties of, the same state, for which the company had entered into a contract with one Hibbard, the holders of contracts for the purchase of the Veasen lands [700] being notified by the company that they would be given in lieu thereof similar contracts for the purchase of the Hibbard lands. It is urged that the court below erred, in admitting in evidence acts of the company and its officers respecting tire Veasen lands. While, as the court below expressly instructed the jury, the defendant could not be convicted for .any act or acts committed in respect to' those lands, since all such acts ceased more than three years before the filing of the indictment, the acts of the company and its officers in regard thereto were, in our opinion, clearly admissible upon the question of the intent with which their acts in regard to the Hibbard lands were performed; for the scheme alleged in the indictment was continuous in character, and applied to the lands situate in Union, Wallowa, and Baker counties, as well as to the Veasen lands. That tire evidence objected to was properly limited by the court below clearly appears from this excerpt from its charge: “The evidence concerning the organization of this corporation and its transactions during the time that it was exploiting the Veasen lands has been admitted, and is to be considered by you in order that you may ascertain and determine the nature and character of the business in which these people were engaged, and whether or not it-was a fraudulent scheme; but, even if you should believe that up to the time the parties began operating in Eastern Oregon the scheme was fraudulent and a violation of the statute, it would not justify you in convicting the defendant, unless you should believe further that, after the company began operating in Eastern Oregon, it continued to maintain and operate as a fraudulent scheme and with intent to defraud the parties with whom it thereafter contracted. The acts set up in the indictment are charged as having been done on a certain date stated therein. The government is not confined in its proof to the dates set forth in the indictment, but it is bound, under the statute of limitations, to prove that the acts of the defendant on which a conviction is asked took place within three years prior to the finding of the indictment. Unless, therefore, you can find from the evidence beyond a reasonable doubt that subsequent to the 23d day of May, 1911, there was a fraudulent scheme and device, as set out in the indictment, and that the defendant was a party thereto, and that subsequent to that date he mailed, or caused to be mailed, one or more of the writings heretofore specified in the charge of the court, you must necessarily find him not guilty. Tour inquiry; therefore, will be largely confined to' a consideration of the nature and character of the business in which these people were engaged while they were exploiting the Union county lands, but in determining such nature and character, you have a right, as I suggested a moment ago, to consider the entire transaction, the circumstances under which the corporation was organized, the purpose for which it was organized, how it was organized, how it was conducted, and from that determine whether they were carrying on an unlawful scheme to defraud in exploiting the Union county land, and within three years prior to the finding of this indictment.” In the similar case of Samuels v. United States, 232 Fed. 536, 542, 146 C. C. A. 494, 500 (Ann. Cas. 1917A, 711), the Circuit Court of Appeals of the Eighth Circuit, in speaking of the admission in evidence of certain letters, circulars, and advertisements which were not referred to in the indictment, said: “As the fraudulent intent is one of the material allegations in the indictment, evidence of other and similar ventures by the accused are properly admissible as bearing on the question of intent. The intention of a person charged with a crime can hardly ever be shown by.direct evidence, and for this reason it is permissible to introduce evidence of other acts of a similar nature, [701] especially when committed continuously, and for a long period of time, thereby establishing the fraudulent intent.-’ In addition to the authorities there cited, see Farmer v. United States, 223 Fed. 903, 911, 139 C. C. A. 341; Stern et al. v. United States, 223 Fed. 762, 139 C. C. A. 292; Sprinkle v. United States, 141 Fed. 811, 816, 73 C. C. A. 285; Shea v. United States, 236 Fed. 97, 149 C. C. A. 307. [4] The only other point that we think merits special notice is the contention on the part of the plaintiff in error that the effect of the instructions of the court below was that the jury was authorized to find the defendant guilty (as it did) under counts 3, 4, and 5, even though he only deposited, or caused to be deposited, in the post office one letter. It is quite true that each letter or other paper put.into the post office in violation of the provisions of the statute constitutes a separate and distinct offense (In re Henry, 123 U. S. 372, 8 Sup. Ct. 142, 31 L. Ed. 174), and that there could be no legal conviction of the defendant under any count of the indictment without proof of the deposit in the mail of the letter or document therein charged to have been so deposited; and such, we think, is the true meaning of the instructions given by the court when read together, as they must be; and such, we think, must have been the understanding of the jusy. Indeed, the court expressly charged the jusy to disregard (as they did) the first two counts of the indictment, for the very reason that the government offered no evidence tending to show that the letters alleged in those counts to have been deposited, or caused to be deposited, by the defendant were in fact so deposited. If the defendant desired any more specific instruction upon the subject, he should have taken exception to the charge of the court at the time, bringing to its notice the ground of such exception, which, according to the record, he wholly failed to do. The judgment is affirmed.