PHILLIPS, District Judge.
James E. Brady and Arthur J. Baxter, hereinafter called defendants, were charged by indictment containing three counts with violations of section 215 of the Penal Code, USCA tit. 18, § 338. They were found guilty on each of the three counts and sentenced to serve five years in the United States Penitentiary on each count, the sentences to run concurrently.
Section 215, in part reads as follows:
"Whoever, having devised or intending to devise any scheme or artifice to defraud, * * * shall, for the purpose of executing such scheme or artifice * * * place, or cause to be placed, any letter * * * in any post office, * * * or authorized depository for mail matter, to be sent or delivered, * * * or shall take or receive any such therefrom, * * * or knowingly cause to be delivered by mail according to the direction thereon, * * * any such letter, * * * shall be fined not more than one thousand dollars, or imprisoned not more than five years, or both."
The assignments of error are all directed to the sufficiency of the indictment. Since the second and third counts of the indictment are substantially like the first, in discussing the questions raised, we shall refer only to the first count of the indictment.
In their brief, counsel for defendants assign three principal reasons why count 1 of the indictment is insufficient, namely:
(1) "Because it charges a scheme to obtain money by false pretenses, and the specification does not sufficiently charge the elements of such a scheme."
(2) "Because it alleges the defendants deposited or caused to be deposited the letters in question."
(3) Because "it alleges that the pretenses were to be made to the Bank of Inman, but that the persons who were to be defrauded and whose money was to be obtained were (not the bank, but) its officers, directors, stockholders, and depositors."
Count 1 charged that the defendants, and certain other named persons not parties to this writ of error, did "devise and intend to devise a scheme and artifice to defraud A.
While the formation of a scheme or artifice to defraud is an essential element of the offense defined in section 215, supra, the gist of the offense is the use of the mails for the purpose of executing or attempting to execute such scheme, and it is therefore sufficient to charge the scheme with such particularity as will enable the accused to know what is intended and to apprise him of what he will be required to meet on the trial. Horn v. U. S. (C. C. A. 8) 182 F. 721, 727; Brooks v. U. S. (C. C. A. 8) 146 F. 223, 227; Redmond v. U. S. (C. C. A. 1) 8 F.2d 24, 28; Foster v. U. S. (C. C. A. 6) 178 F. 165, 171. The scheme need not be pleaded with all the certainty as to time, place, and circumstance required in charging the gist of the offense. Savage v. U. S. (C. C. A. 8) 270 F. 14, 18; Gardner v. U. S. (C. C. A. 8) 230 F. 575, 578; McClendon v. U. S. (C. C. A. 8) 229 F. 523, 525; Brooks v. U. S., supra; Chew v. U. S. (C. C. A. 8) 9 F.2d 348, 351; Mathews v. U. S. (C. C. A. 8) 15 F.2d 139, 143. It is our opinion that count 1 set forth the scheme with sufficient certainty to acquaint the defendants with the charge against them and to enable them to prepare their defense, and that it was sufficient under the rules above stated.
After charging the formation of the scheme, the first count alleged that "defendants, * * * in execution of said scheme * * * and to further the purposes of the same, * * * did * * * knowingly, willfully, unlawfully, and feloniously cause to be delivered to the Bank of Inman, at Inman, Kansas, through the United States mails, by the United States post office at Inman, Kansas," a certain letter. It then set out the letter. It then alleged in an explanatory way that such letter "had theretofore been deposited, or caused to be deposited, by said defendants in the United States post office at Kansas City, Missouri."
Counsel for defendants assert that the allegation last quoted is in the alternative, and for that reason vitiates the indictment.
It will be noted that section 215 defines three ways in which the mails may be used unlawfully: First, by depositing the letter or other matter in the post office to be sent or delivered by the post office establishment of the United States; second, by taking or receiving "any such therefrom"; third, by causing the letter or other matter to be delivered by mail according to the direction thereon. Count 1 charged an unlawful use of the mails under the third provision of the statute. The allegation relative to the depositing of the letter in the United States post office at Kansas City, Mo., was not an allegation of any essential element of the offense charged, but merely an allegation of certain facts and circumstances
"The allegation of the count, that such circular had been knowingly deposited, and caused to be deposited, by Horner, in the post office at New York, addressed to Mrs. Schuchman at Belleville, Illinois, and that such circular was then and there carried by mail for delivery to her at said Belleville, according to the direction so upon it, is inserted merely to show how the circular came to be in the mail; but the gravamen of the charge is, that Horner unlawfully and knowingly caused the circular to be delivered by mail to Mrs. Schuchman, at Belleville, Illinois, in the Southern district of Illinois."
Surplusage has been defined as follows: "Any allegation without which the pleading would remain adequate in law." 31 C. J. p. 747, § 304; Mathews v. U. S. (C. C. A. 8) 15 F.2d 139, 142. "Matter which may be omitted from the indictment without injury to the sense or detriment to the material averments." 31 C. J. p. 747, § 304: "Any fact or circumstance laid in the indictment which is not a necessary ingredient of the offense." Johnson v. Biddle (C. C. A. 8) 12 F.2d 366, 369. See, also, Meyer v. U. S. (C. C. A. 7) 258 F. 212, 215; Smith v. U. S. (C. C. A. 8) 17 F.2d 723, 724; U. S. v. Noveck, 271 U.S. 201, 203, 46 S.Ct. 476, 70 L. Ed. 904.
In People v. Evanoff, 45 Cal.App. 108, 111, 187 P. 54, 56, the court said:
"The test of the sufficiency of the indictment is that it alleges acts and facts which constitute the offense, and is direct and certain as to the party and the particular offense charged. * * * Where the indictment sufficiently charges the defendant with the crime, it is not impaired by the subsequent statement therein of the facts or circumstances under which it was committed, unless such statement of itself constitutes a negation of the crime."
The allegation relative to the depositing of the letter in the post office at Kansas City, Mo., is no part of the gravamen of the charge. Count 1 is adequate in law without such allegation. It alleges facts which are not a necessary ingredient of the offense charged. It may be omitted without injurious effect to the material allegations. Therefore it is surplusage.
An indictment will not be held bad as in the disjunctive or alternative where the alternative statement may be rejected as surplusage. 31 C. J. p. 746, Sec. 302; People v. Hood, 191 Ill.App. 33.
We are not called upon to decide whether the third ground of attack upon count 1 of the indictment would have merit, if true, because it has no foundation in fact. The indictment charged that the scheme was devised to defraud and intended to defraud and actually did defraud the Bank of Inman.
We conclude that count 1 of the indictment was sufficient, and the judgment and conviction on each count is therefore