No. 2371.

11 F.2d 18 (1926)


Circuit Court of Appeals, Fourth Circuit.

January 12, 1926.

Attorney(s) appearing for the Case

A. M. Belcher, of Charleston, W. Va. (Lon H. Kelly, of Charleston, W. Va., on the brief), for plaintiffs in error.

Elliott Northcott, U. S. Atty., of Huntington, W. Va. (Lawrence L. McClure, Asst. U. S. Atty., of Southington, W. Va., on the brief), for the United States.

Before WADDILL, ROSE, and PARKER, Circuit Judges.

PARKER, Circuit Judge (after stating the facts as above).

The first point urged upon us by defendants relates to the sufficiency of the indictment. As we understand their contention, it is that the counts of the indictment are defective in that they do not allege that the fraudulent scheme charged was intended to be effected by the use of the mails, and in that it does not appear from the indictment how the use of the mails alleged would have been effective in furthering the fraud. As to the first proposition, the answer is that this was not a prosecution for conspiracy under section 37 of the Penal Code (Comp. St. § 10201) to commit an offense under section 215 (Comp. St. § 10385). It is true that, in a prosecution of that character, it is necessary to allege that for the purpose of executing the scheme charged the defendants had conspired that the mails should be used.

But this was a prosecution for violation of section 215 itself, and in such case it is well settled that it is not necessary to allege that the fraudulent scheme was intended to be effected by use of the mails. Robins v. U. S. (C. C. A.) 262 F. 126; Smith v. U. S. (C. C. A.) 267 F. 665.

As to the second point, it was not necessary to allege or prove that the matter sent through the mails was calculated to be effective in carrying out the scheme. Savage v. U. S. (C. C. A.) 270 F. 14. Each of the counts of the indictment properly charges the defendants with having devised a scheme to defraud, describing the scheme in detail, and with using the mails in furtherance of the scheme, describing specifically how the mails were used. This was sufficient. U. S. v. Young, 34 S.Ct. 303, 232 U.S. 155, 58 L. Ed. 548; Crane v. U. S., 259 F. 480, 170 C. C. A. 456; Kaufmann v. U. S. (C. C. A.) 282 F. 776.

It is next urged that there was reversible error in admitting evidence as to participation by defendants in fraudulent transactions not connected with the fraudulent scheme charged in the indictment. Defendants contend that this evidence was inadmissible, because they say that there was no prima facie showing of the fraudulent scheme described in the indictment. But in this we cannot agree with the defendants. On the contrary, we think that the evidence adduced to establish the fraudulent scheme alleged was plenary, and that the evidence as to similar fraudulent transactions at or about the same time was properly admitted as bearing upon the question of intent. Defendants stoutly contended that the use of the mails was in good faith, and not in furtherance of any fraudulent scheme. The fact that the scheme set forth in the indictment was merely one of a number of fraudulent transactions, in which they were engaged at or about the same time, strongly tended to negative this contention. It is well settled that, where fraudulent intent is one of the material allegations in the indictment, evidence of other and similar ventures by the accused at or about the same time is properly admissible as bearing upon the question of intent. Samuels v. U. S., 232 F. 536, 146 C. C. A. 494, Ann. Cas. 1917A, 711; Shea v. U. S., 251 F. 440, 163 C. C. A. 67; Colt v. U. S., 190 F. 305, 111 C. C. A. 205; Jones v. U. S., 179 F. 584, 103 C. C. A. 142.

The point is made that the sentences imposed upon the defendants constituted cruel and unusual punishment and amounted to an abuse of discretion on the part of the trial judge. No authority is cited to sustain this position, and it is obviously unsound. The sentences imposed were within the limit prescribed by the statute; and it is well settled that in such case the action of the trial judge will not be reviewed on appeal, except in case of gross or palpable abuse, which does not exist here. The judge who tries the case and hears the testimony is the best, as he is the sole judge of the merits, and if he acts within the boundaries prescribed by law his decision is final and unreviewable in an appellate court. 17 C. J. 254; State v. Woodlief, 90 S. E. 137, 172 N.C. 885.

The remaining exceptions are addressed to the action of the court in refusing to grant separate trials to the defendants and in refusing to set aside the verdict of the jury and grant a new trial. That these were both matters within the discretion of the trial court is so well settled as to require neither discussion nor citation of authority.

The greater part of the argument of defendants was addressed to the proposition that the testimony adduced on the hearing was not sufficient to support a conviction under the indictment. This point was not saved by a motion to direct a verdict in the court below nor in any other manner, and the general rule is that the sufficiency of the evidence to support a verdict cannot be reviewed by writ of error, unless exception is taken before a verdict to a ruling thereon. 17 C. J. 78, and cases cited. Only in very exceptional cases will this court exercise its discretion to review the sufficiency of the evidence to sustain a conviction, where the point was not appropriately raised in the court below. Robins v. U. S. (C. C. A.) 262 F. 126. The defendants have made no such showing as to take this case out of the general rule. Nevertheless, in view of the importance of the case to the defendants, we have reviewed the evidence, and are of opinion that it was amply sufficient to justify the submission of the case to the jury on each count of the indictment. The evidence showed clearly a fraudulent scheme entered into by the defendants, and there was evidence from which the jury could properly infer that the mailing of the letter by Smith, with the note and lease inclosed, was an act done in furtherance of the fraudulent scheme, and that the scheme was in existence prior to the mailing of the letter. In such case the mailing of the letter was in law the act of all the defendants. Farmer v. U. S., 223 F. 903, 911, 139 C. C. A. 341; Belden v. U. S. 223 F. 726, 730, 139 C. C. A. 256; Wiborg v. U. S., 16 S.Ct. 1127, 163 U.S. 632, 41 L. Ed. 289; Schwartzberg v. U. S., 241 F. 348, 154 C. C. A. 228.

It was not necessary for the government to show that there was an intent on the part of the defendants to effect their fraudulent scheme by the use of the mails. This was necessary under section 5480, R. S., but it is not necessary in a prosecution under section 215 of the Penal Code. U. S. v. Young, 34 S.Ct. 303, 232 U.S. 155, 58 L. Ed. 548; Farmer v. U. S., 223 F. 903, 139 C. C. A. 341; Depew v. U. S., 255 F. 539, 166 C. C. A. 607. Nor was it necessary that the mails be used for communicating with the person intended to be defrauded. Ader v. U. S. (C. C. A.) 284 F. 13.

With respect to the counts charging the forwarding of the checks for collection, it appears that the mails were used by the banks with whom these checks were deposited without knowledge on their part of the fraudulent scheme; but the defendants caused the checks to be deposited in these banks with knowledge that the mails would necessarily be used in their collection, and the collection of the checks was a necessary part of the working out of the scheme. In fact, it was through the collection of these checks that the defendants collected and divided the spoils of their fraud. In such case the defendants were responsible for the use of the mail by the banks, though the banks were entirely innocent agencies. Spear v. U. S., 228 F. 485, 143 C. C. A. 251; Shea v. U. S., 251 F. 440, 163 C. C. A. 67; Savage v. U. S. (C. C. A.) 270 F. 14; U. S. v. Kenofskey, 37 S.Ct. 438, 243 U.S. 440, 61 L. Ed. 836. "Responsibility cannot be avoided by the use of an innocent agency intentionally employed to reach and use the mails in effecting a scheme to defraud." Spear v. U. S., supra.

Upon a careful review of the entire record, we are satisfied that the defendants were properly convicted and that the judgment of the court below should be affirmed.



* Certiorari denied 46 S.Ct. 475, 70 L. Ed. ___.


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