KF Cornell University Library KF 2663.1.U58 Digest of decisions of United States Cou 3 1924 019 382 658 (lornell Utttoetaitg SItbtaty atl^aca, Ntm ^arh FROM THE UNITED STATES GOVERNMENT THROUGH THE SUPERINTENDENT OF DOCUMENTS y 506 Rev. Stat, prohibits the withdrawal of this boolc for home t 9tiQ ©|B(J Date Due WOV 9-ti m ' "-"M-sai uj ■m - ' ■ — ■ — Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019382658 K.S. ,vTr. DIGEST OF DECISIONS OF UNITED STATES COURTS PERTAINING TO SECTIONS 215 AND 37 UNITED STATES CRIMINAL CODE WASHINGTON GOVERNMENT PRINTING OFFICE 1921 /v ifi'l I Y '-^K'/'J?v (9l0\ 9^nbo\ CONTENTS. Pagff. SECTION 215, UNITED STATES CRIMINAL CODE 7 POWERS OF CONGRESS 7 Chaptee I. SECTION 215 CONSTRUED S Article 1. General definition 8 Article 2. Elements of a scheme 9 (o) Preconceived plan 9 (&) Use of tlie mails 9,10,11; see also 13,18,25 Article 3. Scope U (a) Bucket shops 14 (&) Worthless checks 11,15 (c) Blackmail ■ 13 (d) Substituted articles 12,14 (e) Patents 17 (/) False financial statements 15,16 (g) Medical 16,17,19; see also 44 (A) Land 18 (i) Stock selling li, 16,17 Chaptee II. INDICTMENT UNDER SECTION 215 19 Article 1. Jurisdiction 19 Article 2. Statute of limitations 20 Article 3. What may be incorporated 21 Article 4. Particularity 22 Article 5. Sufiiciency , 24 Article 6. As distinguished from Section 37 25 Article 7. Consolidation and severance 1 26 Article 8. Superseding indictment 27 SECTION 37, UNITED STATES CRIMINAL CODE 28 Chaptee III. SECTION 37 CONSTRUED 28 Article 1. General definition 28 (a) Elements of a conspiracy 28,31; see also 39 Article 2. Overt act 31 Article 3. Conspirators ; 33 (a) Withdrawal, how accomplished 33; see also 37 (&) Participation 34, 35 Chaptee IV. INDICTMENT UNDER SECTION 37 36 Article 1. Jurisdiction 36 Article 2. Statute of limitations. 36 Article 3. Particularity 38 Article 4. Sufficiency , 39 f3) Page. Chaptek v. evidence 41 Article 1. Relevancy, materiality, competency '■ — 41 (o) Declarations and admissions of conspirators 42,43,48; see also 33, 34 (6) Agents, declarations and acts of 41,47; see also 53,56,57 (c) Test letters 44,46; see also 51 Article 2. Similar schemes and acts 48 Article 3. Documentary 50 Article 4. Weight and sufficiency : 51 (o) Removal to proper jurisdiction 51,52,53 (6) Accomplices' testimony 53,56,57; see also 61 Articled. Defendants' rights 59 (a) Waiver of 59,61,62,63,64 (6) Confessions 62 Article 6. Reasonable doubt , 64 Washington, D. C, Februa/ry 12, 1921. The following is a digest of the principal decisions goTerning the trial of criminal cases brought under sections 215 and 37 of the United States Criminal Code (sections 1707 and 1690 of the Postal Laws and Regulations) . This digest has been carefully prepared by a committee of post-ofBce inspectors selected by the Postmaster Gen- eral for that purpose. Acknowledgment is here made of the cooperation of the West Pub- lishing Co., of St. Paul, Minn., for permission to use the copyrighted material of the Federal Reporter and United States Reports, and the citations herein were taken from those publications. The depart- ment is also indebted to Mr. Sylvester R. Rush, of Chicago, 111., for his helpful criticisms and the use of law briefs which he prepared during his term of service as special assistant to the Attorney Gen- eral. A. S. BUEUISON, Postmaster General. (5) SECTION 215, UNITED STATES CRIMINAL CODE. (Superseding section 5480, U. S. Rev. Stats.) " Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give avray, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, bank note, paper money, or any obligation or security of the United States, or of any State, Territory, municipality, company, corpora- tion, or person, or anything represented to be or intimated or held out to be such counterfeit or spurious article, or any scheme or artifice to obtain money by or through correspondence, by what is commonly called the ' saw-dust swindle,' or ' counterfeit-money fraud,' or by dealing or pretending to deal in what is commonly called ' green articles,' ' green coin,' ' green goods,' ' bills,' ' paper goods,' ' spurious Treasury notes,' ' United States goods,' ' green cigars,' or any other names or terms intended to be understood as relating to such counter- feit or spurious articles, shall, for the purpose of executing such scheme or artifice or attempting so to do, place, or cause to be placed, any letter, postal card, package, writing, circular, pamphlet, or ad- vertisement, whether addressed to any person residing within or out- side the United States, in any post-office, or station thereof, or street or other letter box of the United States, or authorized depository for mail matter, to be sent or delivered by the post-office establishment of the United States, or shall take or receive any such therefrom, whether mailed within or without the United States, or shall know- ingly cause to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such letter, postal card, package, writing, circular, pamphlet, or advertisement, shall be fined not more than $1,000, or imprisoned not more than five years, or both." POWERS OF CONGRESS. The power possessed by Congress embraces the regulation of the entire postal system of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded. {Ex pcvrte Jackson, 96 U. S. 727, 732.) The overt act of putting a letter into the post office of the United States is a matter that Congress may regulate. Whatever the limits of its power, it may forbid any such acts done in furtherance of a scheme that it regards as contrary to public policy, whether it can (7) 8 forbid the scheme or not. Intent may make an otherwise innocent act criminal, if it is a step in a plot. * * * There is no doubt that the law may make each putting of a letter into the post office a separate offense. (Badders v. V. S., HO V. S. 391, 393, 394.) Chapter 1. SECTION 215 CONSTRUED. Article 1. GENERAL DEFINITION. It would require very subtle distinction to conceive of a use of the mail to promote a scheme to obtain property or money by means of false pretenses which would not also be a " scheme or artifice to defraud." (Z7. S. v. Stever, 222 V. S. 167, 173.) When a proposed seller goes beyond that (mere exaggeration), assigns to the article qualities which it does not possess, does not simply magnify in opinion the advantages which it has but invents advantages and falsely asserts their existence, he transcends the limits of " puffing " and engages in false representations and pretenses. An article alone is not necessarily the inducement and compensation for its purchase. It is in the use to which it may be put, the purpose it may serve; and there is deception and fraud when the article is not of the character or kind represented and hence does not serve the purpose. And when the pretenses or representations or promises which execute the deception and fraud are false they become the scheme or artifice which the statute denounces. ( V. 8. v. New South Farm and Home Comfany, 2Jil V. S. 64, 71.) The defendant is not on trial for having received money or prop- erty from others through false or fraudulent pretenses * * * but he is on trial for having devised a scheme or artifice to defraud, and for having used the mails of the United States with the unlawful intent and purpose of consummating that scheme; * * *. It would be immaterial, therefore, if he did this, that no person was in fact defrauded. The statute is not designed to relieve any person from the effect or consequences of the fraud perpetrated upon him, but it is for the purpose of protecting the United States mails from being used for the purpose .of effecting such frauds. * * *. {U. S. V. Dexter, 164 Fed. 890, 895, D. G. la.) It has been held in the following cases that, no matter how seem- ingly fair and honest a scheme may be, if the purpose of the scheme is to defraud, it is within the statute : Durland v. U. S., 161 U. S. 306, 16 Sup. Ct. 508, 40 L. Ed. 709; U. S. v. Loring, (D. C.) 91 Fed. 881; Lemon v. U. S., 164 Fed. 953, 90 C. C. A. 617; Miller v. U. S., 133 Fed. 341, 66 C. C. A. 399. {McGonhey v. V. S., 171 Fed. 829, 832, G. G. A. 8.) The act (section 215) under which the defendants are indicted is aimed at every scheme (to be effected by the use of the post-office establishment) which is in fact designated to defraud, by representa- tions as to the past or present or suggestions and promises as to the future. It was enacted to protect the public against all intentional 9 efforts to despoil through the medium of the post-office establishment, Durland v. U. S., 161 U. S. 306. And the fact that the business con- ducted was an actual business does not prevent its being within the statute, provided it was the basis of a fraudulent scheme. {Foster v. U. S., 178 Fed. 165, 17^, G. G. A. 6.) It is by the (cited) decisions settled, not as an all-inclusive defini- tion, but as one sufficient for the purposes of this case, that the statu- tory " scheme to defraud " may be found in any plan to get the money or property of others by deceiving them as to the substantial identity of the thing which they are to receive in exchange; and this decep- tion may, of course, be by implication as well as by express words. On the other hand, the " scheme " can not be found in any mere ex- pression of honest opinion as to quality or as to future performance. There must be the underlying intent to defraud. {Harrison v. V. S., 200 Fed. 662, 666, G. G. A. 6.) Again, the offense created by section 215 requires proof only of the devising of a scheme or artifice to defraud. It does not require the Government to establish that any person was actually defrauded by the scheme. In this it differs from the offense of obtaining money or property by false pretenses. {Le More v. U. S., 263 Fed. 887, 892, G. G. A. 5.) (Persons) induced to believe they were getting something more secure than they actually got, and the forming of a plan to do this by mean of false representations, would be the devising of a scheme to defraud within the express terms of section 215. {Le More v. U. S., 263 Fed. 887, 893, G. G. A. 5.) Article 2. ELEMENTS OF A SCHEME. It is enough if, having devised a scheme to defraud, the defendant with a view to executing it deposits in the post office letters, which he thinks may assist in carrying it into effect, although in the judg- ment of the jury they may be absolutely ineffective therefor. {Dur- land V. U. S., 161 U. S. 306-315.) The mailing of a letter in the execution or attempted execution of a fraudulent scheme is the gist of the offense denounced by the statute. It is that act, and it alone, which confers jurisdiction upon the courts of the United States to punish devisers of fraudulent schemes. The letter which is mailed is not required to recite the whole scheme or be in itself effective to execute it. {Lemon v. U. S., m Fed. 963, 957, G.G.A.8.) Each letter so taken out or put in constitutes a separate and dis- tinct violation of the act. {In re Be Bara, 179 U. S. 316, 321.) The only acts necessary to charge and prove under section 215 of the Penal Code, are : First, that a fraudulent scheme be devised, etc.; and, second, that for the purpose of executing it the defendant placed, or caused to be placed, the letter, etc., in the postal estab- lishment of the United States, or taken therefrom. A reading of this section of the statute makes manifest the intention of Congress, 10 and precludes any other conclusion. (U. S. v. Young, 215 Fed. 267, 269, D. G. Wash. The simple elements of the offense consist in having devised or intending to devise a scheme to defraud, and in executing or carry- ing into effect such scheme or artifice by placing or attempting to place a letter, postal card, etc., in the post office to be sent or deliv- ered through the post office establishment of the United States. It is said that the misuse of the mails is the gist of the offense, or, as expressed by another court, is the "material thing" or "substance of the offense," while, of course, it must -fee4n execution or attempted execution of a scheme or artifice to defraud. Both elements must be present, while it is the misuse of the mails for the execution of such a scheme that is denounced. * * * The present statute, section 215 of the Code, seems to have eliminated the element that the per- sons devising the scheme must have intended to effectuate the same by opening or intending to open correspondence through the post office establishment, and all that is now essential is that, for the pur- pose of carrying into execution the scheme or artifice, a letter or other writing be sent through or taken from the post office establish- ment. Hence the offense as now defined consists of but two eleinents, whereas previously it consisted of three, as analyzed in the Stokes case, 157 U. S. 187. {Belden et al. v. U. S., 223 Fed. 726, 729, C. G. A. 9.) Under 215 it is sufficient to show an intent on the part of the deviser or devisers of the scheme to defraud some one ; it is no longer necessary to show an intent to use the mails to, effect the scheme, as it was under section 5480, U. S. Eev. Stat. The deviser of the scheme may, at the time he planned it, have intended to avoid all use of the mails in carrying it out; nevertheless if, in carrying it out, he does use the mails, the offense is committed. There are two elements of the crime, a scheme intended to defraud and an actual use of the mails ; both, of course, must be proved to warrant convic- tion. {Farmer v. U. S., 223 Fed. 903, 907, G.G.A.2.) The deposit of the letter in the mail to effectuate the scheme was the gist of the offense, and the letter might accomplish this purpose, without making a false pretense. {Mounday et al. v. U. S., 225 Fed. 966, 967, G.G.A.8.) By section 215 of the Penal Code a purpose to use the mails ceased to be an essential element of the scheme devised. It is sufficient that, having devised a scheme to defraud, the mails are actually used in effecting it. {Trent v. U. S., 228 Fed. 64S, G. G. A. 8.) That section does not require that the scheme should be fraudulent upon! its face, Rumble v. United States, 143 Fed. 772. All that is necessary' is that it be a scheme reasonably calculated to deceive persons of ordinary comprehension and prudence and that the mail service of the United States be used * * * in execution of the same. Eimmerman v. United States, 186 Fed. 307, 108 C. C. A. 385. {0 eating v. V. S., 234 Ped. 30^, C. G. A. 9.) 11 In most of the other counts under section 215 the letters set forth as having been mailed in execution of the scheme to defraud are from (defendant) to various agents in the field, * * *. . The letter which is mailed need not be one to or from the intended victim of the fraud in order to come within the terms of section 215. (Pree- man\.U.S.2UFed.l,9,O.G.A.7.) It is quite true that each letter or other paper put into the post office in violation of the provisions of the statute (sec. 215) con- stitutes a separate and distinct offense. {Riddle v. U. 8., 2^1^. Fed. 695. 701, G. G. A. 9.) Under section 215 it is not essential that the use of the mails be contemplated by the fraudulent scheme. It may have been carefully designed to avoid using the mails altogether, but if in the execution of the scheme the mails are in fact used, the act is violated. (Free- man V. TJ. S., H\ Fed. 1, 17, G. G. A. 7.) The court in its charge, as to the proof of facts, instructed the jury that the Government must establish : " First, that the person charged devised a scheme or artifice to defraud; and, second, that in carrying out such scheme such person either deposited a letter or package in the post office, or took one therefrom." As to the law applicable, the court said : " Under section 5480 of th'e Revised Statutes of the United States, it was then necessary to charge, not only that a scheme to defraud was devised, but that it was intended to be effected by the use of the mails. But under section 215 of the Criminal Code, it is only necessary to charge and prove that the scheme or artifice to defraud was devised or intended to be devised, and that the mails were actually used in executing or attempting to execute the scheme. * * * It is not necessary, under section 215 of the Penal Code, that when the scheme was formed the parties intended to execute it by the use of the mails." Therein we find no error, as we read the two acts of Congress and the decision of the Supreme Court in U. S. v. Young, 232 U. S. 155. {Depew v. U. S. 255 Fed. 639, G.G. A. 3.) Article 3. SCOPE. It (section 5480 now section 215) includes everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future. {Durland v. U. S., 161 U. 8. 306, 313.) The short point in the case is whether the facts charged show (defendant) offended against the statute. The district court was of opinion that they did not, for two reasons: (1) The superintendent at New Orleans was not the agent of (defendant). (2) Section 215 is directed at steps in the execution of fraudulent schemes and the scheme devised by (defendant) was completely executed when he delivered the false claim to the local agent at New Orleans. We are unable to concur. The words of section 215 are " place, or cause to be placed, any letter, etc." * * * « Cause " is a word of very 12 broad import and its meaning is generally known. It is used in the section in its well-known sense of bringing about. TJ. S. v. Ken- ofskey, £43 U. S. UO, 44^, 44S.) To use the mails in order to carry out a scheme for getting money by the making of promises or agreements which, whether known to be impossible of performance or not, there is no intention to perform, is a forbidden use of the facilities of the Post Office Department. Durland v. United States 161, U. S. 306, 313. {U. S. v. Comym, 248, V. S. S49, 353.) It is not necessary, in order to make out a case under the law, that the defendant shall be the inventor or originator of the scheme or artifice to defraud, as such a scheme may be as old as falsehood. (Flemming v. U. S., 17 Fed. 907, 908, D. C. N. D. of III.) The question you have to deal with is whether, in sending out these circulars, and making these representations to the public, he 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 appli- cations by customers. * * * jf y^^ g^d from the evidence that his practice was to carry on the business at arms-length — that is, with people at a long distance — ^you may make such inferences as you think you are entitled to from that circumstance. * * * ^ qqj._ tain degree of praise and commendation of one's goods in business is allowable ; but when that is carried to the extent oi- obtaining the public's money by means of actually fraudulent representations, then it comes under the condemnation of the law. * * * The third count in the indictment charges, in substance that (defendant) formed a scheme to defraud, by sending 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 biU, and that he would thereupon pay such bill, when he really did not have the intention to pay therefor. * * * j^ ^^gg not prove the case to show that the man did not in fact pay some bills which he promised to pay. * * * j^ jj^^j ^^ ^ matter of some consideration to you, in passing upon this count, to note, if it be so, that the (defendant) failed to respond to letters which were ad- dressed to him, in reference to the payment of his bills. You must be satisfied upon your consciences that before he sent out these adver- tisements and these letters he had formed a purpose of defrauding whoever should publish these circulars, out of the payment for such ' publishing. ( U. S. v. Staphs, 45 Fed. 196, 197, 198, D. G. Mich.) In respect to evidence tending to establish that a false representa- tion was made knowingly, Lord Herschell in Derry v. Peek, 14 App. Cas. 337, 375, expressed a view which meets with our hearty ap- proval when he said : " So, too, although means of knowledge are, as was pointed out by Lord Blackburn in Brownlie v. Campbell, 6 App. Cas. 925, a very different thing from knowledge, if I thought that a person making a false statement had shut his eyes to the 13 facts, or purposely abstained from inquiring into them, I should hold that honest belief was absent, and that he was just as fraudulent as if he had knowingly stated that which was false." {Hindman v. First National Bank of Louisville, 112 Fed. 931, 91^, G. G. A. 6.) If the scheme or artifice in its necessary consequence is one which is calculated to injure another, to deprive him of his property wrongfully, then it is to defraud within the meaning of the statute (blackmail). (Borman v. V. S., 116 Fed. 350, 352, G. G. A. 6.) If the attempt to collect a fictitious debt (Weeber v. U. S., 62 Fed. 740) is a fraudulent scheme within the terms of this law, we can see no room to question that a scheme (blackmail) to require another to pay a large sum of money, or be published to the world as guilty of grave crimes and offenses, is less so. * * *_ r^j^g scheme is set forth to ruin and blacken the reputation and character of others hy accusation of heinous offenses and misdeeds. That this scheme was not innocent, but intended for a wrongful purpose, "to de- fraud " in the language of the statute, is shown in the charge that these alleged crimes were to be published to the world in default of the payment of a large sum of money to the accused. {Horman v. V. S., 116 Fed. 350, 351^, G. G. A. 6.) The gist of the offense is the criminal use of the mails of the United States. It is the purpose of the statute to prevent their use in aid of schemes and artifices having in view the defrauding of others of their money and property. {Horman v. U. S., 116 Fed. MO, 351,0. G.A.6.) The offense is the misuse of the mails — the deposit of a letter in the execution of a scheme to defraud. Weeber v. U. S., 62 Fed. 740; Durland v. U. S., 161 U. S. 306. * * * xhe intention to make false and fraudulent representations by means of circulars and letters transmitted through the mails, and thus obtain money from the credulous, constituted the scheme itself. * * * Schemes to defraud depend for success not on what men can do, but upon what they may be made to believe, and the credulity of mankind remains yet unmeasured. {O'Hara v. U. S. 129 Fed. 551, 554, 555, G. G. A. 6.) In both civil and criminal cases the intent with which an act is done is inferred from the result of the act itself, and the law pre- sumes that every man intends the legitimate consequences of his own acts. Agnew v. U. S., 165 U. S. 36, 17 Sup. Ct. 235, 41 L. Ed. 624 ; McKnight v. U. S., Ill Fed. 735, 49 C. C. A. 694. {McGregor v. V. 8., 13 j. Fed. 187-197, G.G.A.l) We think * * * that the defendant knowingly caused the ob- jectionable matter to be put in the mail. By this it is not meant that there was any evidence that he was responsible for the mailing of the newspapers, as such, or for the mailing of anything more than the objectionable articles published by his direction. It is not essen- tial to the commission of the offense prescribed by the statute that the entire contents of the newspaper, or other parcel, deposited in the mail be objectionable in character, or that the offender's respon- sibility for its being put in the mail extend to its entire contents. 14 Nor is it essential to the commission of the offense that the objec- tionable matter be deposited in the mail by the offender himself, or by another acting under his express direction, because he is equally responsible if it is deposited therein as a natural and probable conse- quence of an act intentionally done by him with knowledge at the time that such will be its natural and probable effect. * * * In the line of causation his act is a proximate cause of the objectionable matter being put in the mail. {Demolli v. U. S., 14-4- Fed. 363, C. O. A. 8.) The doctrine in respect of the latitude which is accorded to a mer- chant in commending or puffing his goods has no application to false representations of material facts which are in their nature calculated to deceive and are made with intent to deceive. * * * The falsity of the representations and the (defendant's) knowledge of their falsity being established, * * * it -^^as not an inadmissible view that the promise to refund the purchase price, if the goods were not satisfactory and were returned, was cleverly devised to give apparent, color and support to the representations. * * * ^ purchaser is entitled to receive what he is induced by the vendor's representations- to believe he is ordering and paying for, and not something which, he does not order and may not want at any price. (Harris v.- Rosen- lerger, 11^ Fed. U9, h55, 455, G. G. A. 8.) It is true that the conducting of a bucket shop is not necessarily a, fraudulent scheme within the Federal statute in question (5480)^ (Foster v. U. S., 178 Fed. 166, 172, G. G. A. 6.) The fact that the business conducted was an actual business does not. prevent its being within the statute, provided it was the basis of a fraudulent scheme. McConkey v. U. S., 171 Fed. 829. (Foster v^ V. S., 178 Fed. 165-172, G. G. A. 6.) * * * We think that the purpose of the statute (sec. 5480) was, the broad one of preventing the use of the mails to despoil the public^ whether such result was intended to be accomplished by means of" plain falsehoods, or by the most glittering, alluring, and complicated contrivances. * * * Whatever may be the rule in civil cases, we are satisfied that damage is not made an essential element of the Federal statutory offense of using the mails to execute a scheme or~ artifice to defraud. * * * -y^g g^^g ^f ^^le, opinion that a scheme- and artifice is established by proof of false and fraudulent misrep- resentations by which a person's right of open and fair dealing is. invaded; that having shown that the defendants used false and. fraudulent means to induce persons to part with their property and' to purchase stock which was not of the value represented, the Gov- ernment was not required to go further and prove either the ex- istence or extent of damages to the purchasers. (Wilson v. U. S., 190 Fed. m, Jf33, G.G.A.2.) It is urged that his (defendant's) connection with the transactions was merely that of an attorney at law practicing his profession. The evidence justifies the contrary view; but even members of the bar have no professional right to counsel, advise, or assist others to violates 15 the laws of the United States. (Baird v. V. S., 196 Fed. 778, C. C. A. 8.) When does the not uncommon exaggeration of advertising become sufficient evidence of an intent to defraud? Can a business man, selhng an article of merit and of value and at a fair price, be con- victed of a scheme to defraud, because his advertising overstates the capacity and usefulness of an article? If so, where is the line to be drawn? How far are United States courts and juries to be- come censors of the advertising of manufacturers or dealers? This question stands out for answer, because nearly all business is now aided by advertisements passing through the mails, and on every hand we see claims of capacity, performance, and results which we know can not stand cross-examination. On what we think an exhaustive review of all the reported cases arising under this statute, we do not find any one which seems, on its face, to be one of the class mentioned — exaggerated claims of merits in articles of inherent utility — unless it is Faulkner v. U. S., 157 Federal, 840, in which the Circuit Court of Appeals in the Fifth Circuit reversed a conviction because based merely on exaggerated advertising. * * * -y^g believe the statute here under considera- tion was never intended to cover such puffing of goods. {Harrison V. U. S., 200 Fed. 662, 665, CCA. 7.) Defendant was not charged with having obtained property on false pretenses; such an offense is not one with which the Federal Government is concerned. What goods he may have obtained on credit as a result of the written statements and what he may have done with those goods are immaterial matters. The offense charged is, under section 215 of the Criminal Code, the mailing of the written statement for the purpose of executing the alleged scheme to de- fraud. As to the alleged scheme itself, manifestly a written state- ment showing the firm to be abundantly solvent would tend to induce the extension of credit to it. Manifestly the sending of such a state- ment to a commercial agency, or to a person from whom defendant's firm was seeking to buy goods itself, proved the purpose of its send- ing. If the statement were proved to be false and it were also proved that the defendant knew it to be false when he mailed it, there was sufficient to warrant the finding that the statement was sent for the purpose of executing a scheme to defraud. {Scheinberg v. U. S., 213, 767, 759, C C A. 2.) We are of the opinion that the learned judge was correct in charg- ing the jury that if they found from the evidence that at the time the defendant mailed the checks accompanying the orders he knew that the same were drawn upon a bank in which he had no funds, and which he himself had no intention of paying, he would be guilty under the statute, provided they also found that at the time he mailed them he intended to defraud the party in whose favor such checks were drawn. * * * It is also well settled that when there is proof of fraud the jury may infer a previous design to defraud. {Charles v. U. S., 213 Fed. 707, 712, C C A. 4-) 16 Defendants invited people to buy " treasury stock," and when the invitation was accepted and the money paid they gave to the persons they had induced to purchase, not treasury stock, but their own per- sonal stock. That this is a fraud of the soft contemplated by the statute under which the indictments were found is settled by our opinion in Wilson v. U. S., 190 Fed. 427, where we held that it was fraud, although the persons who thus palmed off their personal stock loaned the proceeds of the sale to the company. * * * Irrespective of all the other testimony, and with the conceded facts before them as to sale of stock falsely alleged to be " treasury stock," the jury would be bound to find that defendants had devised a scheme to de- fraud, if they were intelligent and conscientious. {Myers v. U. S., 2%3 Fed. 919, 925, C.G.A.2.) Since the adoption of the Criminal Code the United States Circuit Court of Appeals for the Second Circuit has held that the use of the mails for the transmission of a false financial statement to com- mercial agencies, with the intent that it should be used as a basis for the purchase of goods on credit to which defendant was not entitled, is a " scheme or artifice " within section 215 of the Criminal Code. {Bettman v. U. S., 2£4 Fed. 819, 8^, G.C.A.6.) The proposition that the scheme or artifice to defraud contem- plated by the statute is limited to such schemes or artifices as are accomplished by deception or trick was expressly rejected in the Horman case, 116 Fed. 350. As there pointed out by Mr. Justice Day, 116 Fed. 352, while the term " artifice " signifies deceit or trickery, the word " schertie " itself does " not necessarily involve trickery or cunning. A scheme may include a plan or device for the legitimate accomplishment of an object. But to come within the terms of the statute under consideration the artifice or scheme must be designed to defraud," and the term " defraud " was held to mean only "the wrongful purpose of injuring another.", A fraudulent scheme may be within the statute, even though used in the prosecu- tion of an established business, legitimate if honestly conducted. {Bettman v. U. JS., 221f. Fed. 819, 8U-, G. G. A. 6.) It is not necessary to criminality under the act that nothing what- ever is to be given in return for the money received, Harris v. Eosen- berger, 145 Fed. 459; nor is mere solvency of the borrower or the collectibility in fact of the notes necessarily conolusive against an intent to defraud. {Bettman v. V. 8., 3^4. Fed. 819, 827, G. G. A. 6.) * * * The indictment charges the defendants with having de- vised a scheme to solicit money from patients for proposed treat- ment, not intending to furnish treatment in good faith, but only as a pretext for securing the patients' money. Whether the treatment or medicine furnished was of little or much value intrinsically, in this view of the scheme, was of no consequence. We think the scheme alleged to have been devised by the defendants was one included within and prohibited by section 215 of the code. {Hughes v. U S , 231 Fed. 50, 53, G. G. A. 5.) 17 There can be an honest, though mistaken, judgment of the future from existing conditions; even sincere but visionary optimisra is allowable. But there can also be alluring suggestions and predic- tions of what will come to pass, put forth without reasonable war- rant and with the fraudulent intent to profit by inducing belief and reliance among the credulous and uninformed. In fact, that is one of the most successful methods of defrauding well-meaning people, who hope to relieve the stress of limited incomes. It is not essential that such schemes be addressed only to cupidity or desire of ill- gotten gain. The closer they are conducted along the lines of legiti- mate enterprises the more effective to defraud they become. {Mof- fatt V. U. S., 232 Fed. 522, 535, G.G.A.8.) While men may not be convicted for acts done in good faith, nev- ertheless schemes and devices to induce the making of stock invest- ments which plainly would not otherwise be made, by the knowingly false representation of material facts and conditions, show a culpa- bility which enthusiasm can not justify nor optimism excuse. {Linn V. V. 8., 23^ Fed. 51^,552, G. G. A. 7.) The mere fact that a fraudulent scheme centers about divine or other healing does not in any wise or sense serve to take it out of the domain of a fraudulent scheme, and if, in furtherance of such a scheme conceived in fraud, the mails of the United States are made use of without doubt, by whomsoever conceived or consummated, the perpetrators of such schemes should receive prompt and mer- ited punishment. * * * {U. 8. y. 8cMatter, 235 Fed. 381, 382.) It became material to inquire whether or not the representation made by the defendants of the ownership of certain patents was a fraudulent representation. * * * there was a vital question as to the honesty of the conduct of the defendants in offering for sale and selling shares of stock under representations mailed to various per- sons as to present and prospective value of the patent rights, the foundation value of such shares. This being true, if the defendants who made such representations were well advised when they put them forth that there was a, competing patented machine on the mar- ket, or about to be marketed, and that putting the competing device into the market would, with reasonable certainty, mean substantial impairment of the value of the shares (offered for sale by defend- ants), which depended, not upon the validity but upon the value of the patent owned, and if, despite such knowledge, defendants con- tinued their representations of value of their patent to investors, and proceeded to dispose of their own stock because of their belief that the competing patented device would substantially lessen the value of the patent and shares (of defendant's company), we believe actions and letters showing such conduct became relevant upon the issue of good faith in the making of the representations concerning the value of the stock defendants were trying to dispose of * * * the court said it was immaterial how confident defendants may have been that the business could be made a success, or that they could 29961—21 2 return money invested without loss, because the representations which they would have agreed to make would have been made for the purpose of getting money in a wrongful manner, and they could not, under the circumstances, make that rightful by pointing to some ultimate good intent. {Menefee v. U. S., ^36 Fed. 8E6, 829, 831, 837, C. C. A. 9.) One may be as sorely defrauded who is induced by false repre- sentations to sell his productive farm in Kansas, and with its pro- ceeds to buy for a farm and a residence a tract of land under water in Florida, although the uninhabitable and unproductive purchase may be worth in money the price paid for it for some other purpose than the production of farm or garden products and for occupation as a home. {Chambers v. U. S., 237 Fed. 613, 622, C. G. A. 8.) Generically this (realty) is a familiar business, and entirely law-_ ful. But these assumptions do not render it impossible, nor even difficult, so falsely to represent the condition of an actual and lawful business as to render it a mere vehicle and excuse for fraud. Indeed, the most dangerous and reprehensible swindles usually consist in building a scheme of deception upon a foundation lawful per se. McConkey v. U. S., 171 Fed. 829. Many a man embarks with hope, if not confidence, upon a business voyage that goes awry; in the beginning he is honest and has no thought of wrongdoing; when trouble arises, temptation comes, and falsehoods often seem the only way to defer collapse. Just when the sanguine man becomes reck- less, and the reckless one criminal, can not be laid down as a matter of law ; if facts justify the inquiry, the answer is solely for the jury. {Looker v. U. S., 21fi Fed. 932, 931^, G. G. A. 2.) The scheme to defraud condemned by section 215 of the Penal Code is not confined to devises by which it is intended that the cus- tomer shall receive nothing for his money. Harris v. Rosenberger, 146 Fed. 449, 455. A scheme to defraud by means of false pretenses is within the section invoked, U. S. v. Stever, 222 U. S. 167, 174, even though used in the prosecution of an established business, legitimate if honestly conducted. Foster v. IT. S., 178 Fed. 165, 172. {Sparks V. U. S., 241 Fed. 777, 782, G. G. A. 6.) A prime purpose of section 215 is to prevent the prostitution of the mail service. The incidental protection of the public from frauds supplements a} service usually performed by the State. * * * The offense involves the use of the mails in the consummation of, on in the effort to carry out, the fraudulent design. The gist of the offense is the improper use of the mails. * * * The consummation of the crime is not dependent upon the success of the scheme. The crime is complete before the letter designed to mislead or otherwise used in carrying out the scheme, is received by the intended victim. The person addressed may have the shrewdness to detect the fraud; or, being misled, he may be in such financial condition as to be proof against fraud. Neither fact will affect the crime. {Whitehead v. V.S.,2J,6Fed.385,388,G.G.A.6.) 19 This court has twice recently upheld convictions under facts not to be, in principle, distinguished from those here present, where the charge is one of a fraudulent scheme to manufacture and sell a spurious compound, and where the use of the mails was in pro- curing the innocent raw materials for effectuating this scheme. * * * The drugs which the defendant ordered in this case were free from fraud, the transaction, considered by itself, was an ordinary purchase and sale, and the defendant might have used them for a perfectly rightful purpose; * * * The scheme was not ready for its final execution; but the scheme had been formed and laid out by the defendant along the main and general lines which would be followed, and * * * the materials were used in aid of getting ready for the final execution. {Edwards v. Z7. S., £49 Fed. 686, C. C. A. 6.) The scheme charged involved the use of letters to induce shipments of produce and the purpose to convert the proceeds. * * * It is insisted that the letter set forth in the first count negatives the intent to defraud. * * * If it were necessary that the writing * * * sent by the post office establishment, as an element of the crime, dis- close a fraud, that which would make it illegal would render it innocuous. It was not the purpose of the law to punish merely the incompetent in crime. Efficiency in fraud should not insure im- munity. The letter may have been well conceived to establish the ■relations necessary to the success of the scheme charged. {Lewis v. U. S., 259 Fed. ££1, G. G. A. 6.) As to the sufficiency of the evidence : It is elaborately argued that there is nothing inherently wrong in the theory of mental healing. In a general way that is conceded. The law, however, prohibits a scheme or artifice to defraud by means of false representations, and the use of the mails in executing the purposes of the scheme. One with corrupt purpose may devise a scheme to defraud by employ- ing an alleged mental power to relieve suffering of mind or body, and' may use the mails to carry out his corrupt scheme. {Crane v. U. S., £59 Fed. 480, G. G. A. 9.) This section of the statute (215) does not make damage or loss to the victims of a scheme to defraud, or to obtain money or prop- erty by false pretenses, representations or promises, a sine qua non of its violation, and such damage or loss is not indispensable to the commission of an offense under it. {Wine v. U. S., £60 Fed. 911, 914, G. G. A. 8.) Chapter II. INDICTMENT UNDER SECTION 215. Article 1. JURISDICTION. The constitutional requirement is that the crime shall be tried in the State and district where committed, not necessarily in the State or district where the party committing it happened to be at the time. This distinction was brought out and recognized in Palliser's case, 20 136 U. S. 257, 265. * * * This court has recognized, therefore, that there may be a constructive presence in a State, distinct from a personal presence, by which a crime may be consummated. {Hyde V. U. S., 225 V. S. 347, 362.) The postal car is a place where " letters are kept in the regular course of business for reception, stamping, assorting, or delivery." Goode V. U. S., 159 U. S. 663. It is certainly within any fair and reasonable construction of the phrase "branch post office," and the statute is to be construed fairly and reasonably. {Hanley v. U. S., 123 Fed. 8jS, 852, G. 0. A. 2.) It certainly is now admitted law that not only may corporations (the art of pleading by attorney having been discovered) be indicted for nonfeasance, but for such deeds of misfeasance as are com- plete by the mere doing of the thing prohibited. (?7. S. v. Mac- Andrews and Forbes Co., U9 Fed. 823, 835, C. G. A. 2.) The plain purpose of Congress in making it an offense to know- ingly cause to be delivered by mail, according to the direction thereon, a letter, etc., was to confer jurisdiction upon the court at the place where the letter is delivered, to punish the offender, and the statute must not be so strictly construed as to defeat this plain intention of Congress. * * * "We are of the opinion that this evidence was sufficient to justify the jury in finding that the defendant caused this letter to be delivered by mail according to the directions thereon. {Moffatt V. V. S., 232 Fed. 522, 532, G.G.A.8.) The scheme to defraud need have no original relation whatever to the laws of the United States, and that the mere incidental or un- premeditated use of the mails may give to the Federal courts the trial of any State law offense which involves defrauding another person, this result being accomplished by the broad definitions of " defraud " and " scheme or artifice " which are now accepted. {Hendrey v. V. S., 233 Fed. 5, 8, G. G. A. 6.) In Mitchell v. U. S., 196 Fed. 877, it was held by the court that under an indictment for violation of section 6480 of the Eevised Statutes, * * * it was immaterial when the scheme to defraud was devised, but that if the scheme or artifice was devised more than three years prior to the return of the indictment, but was in existence and the defendant was operating under it within three years, the case would be within the statute of limitations and might be prosecuted. {Bowers v. U. S., 2U Fed. 6Jfl', 61,8, G. G. A. 9.) Article 2. STATUTE OF LIMITATIONS. The statute, while laying down the general rule that the charges of crime shall be formally presented (to a grand jury) within a limited time after the act complained of, expressly excepts from that rule the case of any person fleeing from justice. {Streep v. U. S., 160 U. S. 128, 133.) It is contended that all the elements of the offense charged must fall within the period of the statute of limitations, namely, three 21 years. No authority is cited to sustain this proposition, and we find it without merit. (Defendant) was not indicted for devising a scheme and artifice to defraud. He was charged with using the mails in pursuance of such a scheme. Tbe statute provides that, " if any person having devised or intending to devise any scheme or artifice to defraud " by means of the United States mails shall place in or receive from any post office of the United States any letter or package, he shall be punishable, etc. It is plainly immaterial when the scheme may have been devised. To hold otherwise would lead to the absurd conclusion that one might devise a scheme to defraud by the use of the mails, then lay it aside for three years, and thereafter proceed to carry it out with impunity. Each letter so taken out or put in constitutes a separate and distinct violation of the act. In re Henry, 123 U. S. 372. {Mitchell v. U. S., 196 Fed. 87k, 878, C. C. A. 9.) Article 3. WHAT MAY BE INCORPORATED. He who devises a scheme or artifice to defraud intends to use it to defraud some particular person or persons, or anyone of the general public who may be reached and entrapped, so that it may be said, and so charged, that the scheme was devised with intent to defraud anyone with whom communication concerning it was had by mail. * * * the crime with which (defendant) is charged to have con- spired to commit against the United States is not to defraud any per- son or persons, but to use the mails in carrying out a scheme to de- , fraud, and the persons communicated with through the mails are only important to identify and show the scheme. The names of as many may be used in the indictment as the pleader may know, and all mail connected with the scheme, shown to have passed through the post office to any person whether named in the indictment or not, is evi- dence for the jury upon the question of the existence of the scheme. ( U. S. V. Marrm, 159 Fed. 767, 773, D. G. Pa.) The defendants object that they could be tried only on three counts for offenses committed within the same six calendar months and that the Government was bound to prove that an intention to use the mails was a part of the original scheme to defraud. These things were true of section 5480 of the United States Eevised Statutes, but section 215 of the Criminal Code, under which this indictment is found, has amended law by requiring only a use of the mails in executing the scheme to defraud and by prescribing no restriction as to the number of counts the indictment may contain or as to the period within which the separate offenses charged must have been eoromitted. {Stern v. U. 8., 223 Fed. 762, G. G. A. 2.) The only objection made by counsel for the defendants tp any part of the address of counsel for the United States was to his calling the purchasers of the lands from Chambers victims. That objection was overruled by the court and an exception was taken. But the purchasers certainly were victims of deleterious pur- 22 chases and contracts, whether through the good or evil intent of the defendants, and it was not error to call them such. {Chambers v. V. S., 237 Fed. 513, G. G. A. 8.) 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. {Riddell v. U. S., m Fed. 695-699, G. G. A. 9.) The case of Pointer v. U. S., 151 U. S. 396, is cited by (defend- ants) in support of their objection that the conspiracy charged can not be joined in the same indictment with the charge to commit the offense which is the object of the conspiracy. The Supreme Court did not so hold. (Sidehotham et al. v. U. S., 253 Fed. k-17, G G A 9\ Article 4. PARTICULARITY. The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may de- cide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intents; and these must be set forth in the indictment with- reasonable particularity of time, place, and circumstances. (TJ. S. v. Gruikshank, 92 U. S. 542, 558.) Neither the constitutional provision nor the statute accords the right to be apprised of the names of the witnesses who appeared before the grand jury. (Wilson v. U. S., 221 V. S. 361, 375.) ■ Where the offense is purely statutory, having no relation to the common law, it is, as a general rule, sufficient to charge the de- fendant, in the indictment, with the acts coming fully within the statutory description, in the substantial words of the statute, with- out any further elaboration. To this general rule should be added the qualification that the description of the offense in the indictment must be accompanied by a statement of all the particulars essential to constitute the offense, and must be sufficient to inform the accused as to what he must be expected to meet at the trial. ( U. S. v. Ben- son, 70 Fed. 591, 595, G. G. A. 9.) * * * It is a well settled rule in criminal practice that the date of an alleged offense, as stated in the indictment, is not binding on the United States, and is only material in reference to the bar of limitation and to show that the offense was committed anterior to the presentment of the indictment. {Hume v. V. S., 118 Fed. 689-696, G.G.A.5.) It was incumbent upon the pleader to describe the scheme or artifice to defraud which had been devised, with such certainty as would clearly inform the defendants of the nature of the evidence to 23 prove the existence of the scheme to defraud, with which they would be confronted at the trial. {Stewart v. U. S., 119 Fed. 89, 9L G. G. A.8.) The court rightly refused to limit the Government to the precise time when the indictment averred the scheme was devised to de- fraud the person to whom the letter was mailed. A like scheme had been in operation for months. The scheme charged in the indictment was but a continuation of this. It was entirely proper to introduce evidence of its character as reflecting upon the nature of the scheme the defendant was engaged in executing when he mailed the letter in question. {O'Hara v. V. S., 1£9 Fed. 551, 556, G. G. A. 6.) It is to be borne in mind that what is required (in an indictment) is reasonable, not absolute or impracticable, particularity of state- ment ; else, the rules of criminal pleading will be deflected from their true purpose, which is to secure the conviction of the guilty, as well as to shield the innocent. It is also to be borne in mind that a defect in matter of substance is fatal, while a defect in matter of form only — and this includes the manner of stating a fact — which does not tend to the prejudice of the accused, is immaterial. {Brown V. U. S., 143 Fed. 60, G. G. A. 8.) Because * * * execution (of a scheme to defraud) does not constitute the gravamen of the offense, it need not necessarily be pleaded with all the certainty as to time, place and circumstance requisite in charging the writing and mailing the letters in execution of the scheme which does constitute the gravamen of the offense. {Brooks V. U. S., U6 Fed. 223, 227, G. G. A. 8.) It would seem that all these letters were intended in some way to be utilized in connection with the scheme and artifice set up in the indictment. But it was not necessary that this purpose should be shown by the letters absolutely, and it was so held in the case of Durland v. U. S., 161 U. S. 306. ( Walker v. U. S., 152 Fed. Ill, 115, G. G. A. 9.) It is the established rule of this court that while particulars of the scheme are matters of substance and must be described with cer- tainty suiBcient to show its existence and character and to fairly acquaint the accused with the particular fraudulent scheme charged against them, the scheme itself need not be pleaded with all the cer- tainty as to time, place, and circumstance requisite in charging the gist of the offense, the mailing of the letter or other article in execu- tion or attempted execution of the same. Colburn v. U. S., 223 Fed. 590; Gould et al. v. U. S., 209 Fed. 730; Brooks v. U. S., 146 Fed. 223. {Gardner v. U. S., 230 Fed. 575, 578, G.G.A.8.) When the charges of an indictment are so general that they do not advise the defendant of the specific acts of which he is accused, the court may direct that a bill of particulars be furnished him so that he may properly prepare his defense. The granting or refusal of the bill of particulars rests in the sound discretion of the court. (Z7. 8. V. Pierce, 2^6 Fed. 888, D. G. N. D. N. Y.) 24 Article 5. SUFFICIENCY. A name need not be correctly spelled in an indictment^ if substan- tially the same sound is preserved. {Faust v. U. S., 163 V. S. JiB'B, m.) It is not essential that the letter written in aid of the scheme con- tain false statements. {U. S. v. HoeifUnger, 33 Fed. 469, ^71, D. G. E. D. of Missouri.) As to the suggestion that the letters alleged to have been placed in or taken from the post office are not sufficiently described * * * There is no proof that the grand jurors knew to whom or by whom these letters were addressed, at the time when this indictment was found. * * * I do not think the pleader was obliged to set out these letters in full in the indictment, or give the substance of their contents, nor that it should appear from the letters that they were a part of a fraudulent scheme. Letters or circulars in execution of a fraudulent scheme might appear on their face to be wholly innocent, and in all respects part of a legitimate transaction; but if sent through the mails for the purpose of effecting a fraudulent artifice, an offense under this statute is committed. * * * j^ seems to me enough if the defendants are told by the indictment to whom they sent letters, and from whom they received letters, through the post office. {U. S. V. Loring, 91 Fed. 881, 885, 886, D. G. III.) It is well to note the fact that a motion to quash is one addressed to the discretion of the court, and that in the courts of the United States, at least, the refusal to quash will not be reviewed in the ap- pellate court. {McGregor v. V. S., 13^ Fed. 187, 192, G. G. A. 4.) The authorities heretofore cited show that it was not necessary to set forth in the indictment all the letters written by the defendant. All the statute requires is that a letter in furtherance of the scheme should have been deposited in the mail. It is optional on the part of the pleader to include more if he so desires ; but it is not incumbent upon him to do so in order to permit him to introduce them in evi- dence. * * * It was wholly unnecessary to set out in the indict- ment the evidence which the prosecution intended to introduce in support of the charges made in the indictment. * * * It may be admitted, for the purpose of this opinion, that, if the circular (pre- pared by an agent) had been issued and circulated without knowledge and consent of (defendant) he would not be bound thereby. * * * The entire testimony shows that (he) knew what was set out in the circular, that it was submitted to him, and that he examined it, in- dorsed, and approved it. * * * The circular was therefore prop- erly received in evidence. {Rurrible v. TJ. S., US Fed. 772, 779, C. G. A. 9.) It was not necessary to show that anyone was in fact defrauded, nor was it necessarily conclusive against the fraudulent nature of the scheme that those named in the indictment as amongst those in- tended to be defrauded were not in fact so defrauded. {Foster v. U. S., 178 Fed. 165-173, G. G. A. 6.) 2'5 * One count in an indictment may properly refer to matter in a previous count, so as to avoid unnecessary repetition * * * ^f ^j^g reference be suiBciently full to incorporate the matter going before with that in the count in which the reference is made. Grain v. U. S., 162 U. S. 625 ; Blitz v. U. S., 153 U. S. 308. (Foster v. U. S., 178 Fed. 165, 167, C. G. A. 6.) The indictment sufficiently charges a scheme or artifice to defraud. It was not necessary to charge that it was to be effected through and by the use of the United States mails, and this precise question has been lately before the Supreme Court, and there decided adversely to the contention of plaintiff in error. United States v. Young, 232 U. S. 155-161. {Ruthmen v. U. 8., 2^ Fed. 70, G. G. A. 5.) In order to constitute the offense defined by section 215 it is not essential that the alleged fraudulent scheme or artifice met with suc- cess, or that gain or advantage accrued to the perpetrator, or loss to another. The offense is committed if, in the execution or further- ance of any such scheme or artifice to defraud, the post-office estab- lishment of the United States is employed as defined in said section 215. * * * It is well settled that it is not necessary in each count of an indictment to restate the scheme or artifice to defraud, which has been duly set forth in another count, but that apt reference in the counts to the scheme as it is so set forth in another count is suffi- cient and proper. Foster v. U. S., 178 Fed. 165. {Linn v. U. S., mii- Fed.5J^,5Jt6,G.G.A.7.) In Coiiin v. U. S., 156 U. S. 432, it was held that where there is an averment that a person or matter is unknown to the grand jury, and no evidence upon that subject is offered by either side, and nothing appears to the contrary, the truth of the averment or want of knowl- edge in the grand jury is presumed. {Roberts v. TJ . S., 2JiB Fed. 87S, 879, G. G. A. 9.) The indictment charged that the defendants devised a scheme to defraud certain persons named and other persons to the grand jury unknown * * *. At the trial it did not appear that at the time the scheme was devised the defendants knew the persons whom it was alleged they intended to defraud, and therefore it is claimed the defendants could not have intended to defraud these persons. * * * The defendants were presumed as a matter of law to have intended to defraud all persons who should deal with them pursuant to the scheme to defraud, whether they were -known to defendants at the time the scheme to defraud was devised or not. {Bonfoey v. U. S., 252Fed.802,G.G.A.8.) Article 6. AS DISTINGUISHED FROM SECTION 37. It is assigned as error that the court refused to instruct the jury to acquit the defendants, for the reason that the proof showed a com- pleted offense under section 5480, and therefore the offense of con- spiracy had become merged into that of using the mails to defraud. The crimes denounced by sections 5440 and 5480 are both misde- 26 meanors, and the doctrine of merger does not apply. {Rolmson v. U.S., 172 Fed. 105, 107, CO. A. 8.) A reading of the indictment clearly discloses that its design and only purpose was to charge the defendants with the crime of con- spiracy under section 5440. It is essential in an indictment for conspiracy to commit a crime against the United States to charge acts sufficient to show that the design of the conspiracy was to commit an offense against the United States. In this case the offense which the defendants were charged with having conspired together with the intent to commit was to defraud under section 5480. * * * The fact that the indictment shows in charging overt acts that a com- pleted offense was committed under section 5480 of the Kevised Statutes does not render the indictment duplicitous. * * * The crime consists in the conspiracy to commit the offense. The overt act is no part of the offense of conspiracy, as was said in Ware v. U. S., 154 Fed. 577. * * * The conspiracy is a continuing one so long as overt acts are committed in furtherance thereof. U. S. v. Kissel, 218 U. S. 601-607. {Stanley v. V. S., 195 Fed. 896, 901, C. C. A. 8.) The scheme to defraud denounced by the statute (sec. 215) is a crime wholly different from conspiracy, and not to be confounded with the offense known as obtaining money under false pretenses. Emanuel v. U. S., 196 Fed. 322. The gist of conspiracy is the agreement, the substance of an offense under section 215 is the prose- cution of a fraudulent purpose toward the execution or fulfillment whereof the mail is used. One man may form and accomplish it, with or without assistance; but all who with criminal intent join themselves even slightly to the principal schemer are subject to the statute, although they may know nothing but their own share in the aggregate wrongdoing. {Schwartzberg v. U. S., 2Jfl Fed. 3^8, S52, G. G. A. %.) Article 7. CONSOLIDATION AND SEVERANCE. Now the counts here in question are each based on a letter mailed to a different person. Such mailing is a separate act, and, being done in pursuance of a scheme to defraud, constitutes an offense under section 5480 (section 215, Criminal Code). Such being the fact, it follows that a conspiracy to do that act was a conspiracy to commit an offense against the United States. This brings the case within the letter and spirit of section 5440 (section 37, Criminal Code) and warrants a charge of conspiracy to commit that particular offense. That act and offense constituting the basis of a conspiracy to commit it, it follows that an indictment therefor will not shield from in- dictment a conspiracy of the same person to commit another addi- tional and separate offense, although of a like general kind, against the United ^States. The wording and spirit of section 5440 require such construction to fulfill its intent. We hold, therefore, that each of the counts before us covers a conspiracy indictable under section 5440. {Francis v. U. S., 152 Fed. 155, G. G. A. 3.) 27 The principle is not doubted that the granting of separate trials to numerous defendants is a matter of discretion, U. S. v. Ball, 163 U. S. ■672, and that the review of discretion is limited to the abuse of that judicial power. {Schwartzberg v. Z7. 8., ^41 Fed. SIiB, G. G. A. 2.) Article 8. SUPERSEDING INDICTMENT. I know of no reason why, because a demurrer has been sustained to an indictment which was insufficient in form or substance to put the defendants upon trial, a new indictment, curing the defects found in the former, may not be returned by the grand jury which has al- ready heard all the evidence, if they desire to do so. ( U. 8. v. Bofp^ I Fed. 177, D. G. Galif.) SECTION 37, UNITED STATES CRIMINAL CODE. (Superseding section 5440.) " If two or more persons conspire either to commit any offense- against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such, conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both." Chapter III. SECTION 37 CONSTRUED. Article 1. GENERAL DEFINITION. It is true that the unlawful agreement satisfies the definition of the crime (conspiracy), but it does not exhaust it. It is also true,, of course, that the mere continuance of the result of a crime does not continue the crime. U. S. v. Irvine, 98 U. S. 450. But when the plot contemplates bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators ta keep it up, and there is such continuous cooperation, it is a perver- sion of natural thought and of natural language to call such con- tinuous cooperation a cinematographic series of distinct conspiracies,, rather than to call it a single one. * * * ^ conspiracy is a part- nership in criminal purposes. That as such it may have continua- tion in time is shown by the rule that an overt act of one partner may be the act of all without any new, agreement specifically di- rected to that act. (U. S. v. Kissel, 218 TJ . S. 601, 607, 608.) It is true that the conspiracy, the unlawful combination, has been said to be the crime, and that at common law it was not necessary to aver or prove an overt act ; but section 5440 (section 37, Criminal Code) has gone beyond such rigid abstraction and prescribes, as nec- essary to the offense, not only the unlawful conspiracy, but that one- or more of the parties must do an " act to effect " its object, and pro- vides that when such act is done " all the parties to such conspiracy "■ become liable. * * * The conspiracy, therefore, cannot alone constitute the offense. It needs the addition of the overt act. Such- act is something more, therefore, than evidence of a conspiracy. * * * {Hyde V. U. S., 2£5 U. S. 347, 369.) The crime (conspiracy) defined by this act * * * consists of two elements: A conspiracy and an act done to effect or accom- plish it. The purpose of the conspiracy must be either to commit (28) 29 a crime defined by any law of the United States, or to defraud the same. ( U. S. v. Owen, 32 Fed. 63^, 536, D. C. Oreg.) No conspiracy can exist without at least two persons being con- spirators therein. It is not necessary, in order to constitute a con- spiracy, that two or more persons should actually meet together — that is, personally be together — and then enter into an explicit or formal agreement for an unlawful or criminal scheme; nor is it necessary, before a conspiracy can be formed, that two or more per- sons shall directly^that is, expressly, by a writing or by spoken words — state or agree as to what that unlawful or criminal scheme is to be, or the particulars of the plan, or the means to be applied in carrying out such a conspiracy. * * * Conspiracies are sel- dom, indeed, formed in a manner open to direct proof. A conspiracy is rather a thing of darkness. * * * the assistance or partici- pation in the alleged unlawful acts must be intentional. It follows, therefore, that proof of mere suspicion * * * without such in- tentional participation in it, or connection with it, is not sufficient. * * * I have already said, in substance, thatj in order to establish a conspiracy, it is not necessary that there shall be any explicit or formal agreement for an unlawful scheme between the parties. Nor is it necessary to prove that the parties to the conspiracy were ever in this district wherein this case is being tried. * * * The crim- inal conspiracy charged in the indictment may have been in existence, and yet none of the conspirators ever have been within this State or ever have personally met together. * * * jf j^^ overt act * * * was committed within this district, and as charged in the indictment, then it does not matter when the conspiracy was formed. (Beavers v. Henkel, IH TJ. S. 73, 84, 86, 86.) No man can willfully and knowingly violate the law and excuse himself from the consequences thereof by pleading that he followed the advice of counsel. {Williamson v. IJ. S., 207 U. S. 4£S-4S3.) Much efficacy is attributed to a certified copy of an indictment found in a competent court of another district when put in evidence in a removal proceeding. See 167 U. S. 104; 183 U. S. 249; 199 U. S; 62 ; 194 U. S. 73. Pnoe v. Henkel, 216 V. 8. 4B8, Jp91. Copies of the indictments duly returned by a grand jury were put in evidence. That made a prima facie case, requiring detention until an order of removal could be applied for and issued. {Haas v. Henhel,216V.S.lfi2,473.) The substance of the offense described (sec. 215, Criminal Code) is the using of the Post Office Department for the purpose of carrying into execution a scheme or artifice devised or intended to be devised • to defraud. * * * ^ fraudulent device or scheme is of the essence of the charge under the statute, and the proofs of such a fraudulent device can frequently be made only from a variety of facts and circumstances often very inconclusive when standing alone, but more or less potent when taken together, one circumstance with another or others. It appears from the evidence that the defendant has once before, at the last June term, been before this court on a similar charge, and 'that he plead guilty to the infor- mation, and was thereupon convicted and punished. * * * The charge in the case now on trial relates to a later period * * * I think it entirely competent in order to determine the true char- adter of the defendant's business * * * that the history of the facts attending the establishment and conduct of the business previously should go to the jury for what it is worth. * * * If the defendant, as charged, devised a scheme to defraud by advertising under various letters for agents to act for him in sell- ing goods and distributing circulars, when he did not expect or intend to employ any agents, with the intent to incite any and all persons who might meet with such advertisements or circulars, as charged, to send his 15 cents and $2.50 for an agent's outfit or sample case, as charged, with the intent to cheat and defraud the persons sending him stamps and money, or a portion of it, and converting them to his own use without intending any equivalent for the same, and to carry on this fraudulent device he took a letter from the post office * * * this would make the offense complete. {TJ . S. v. Stickle, 15 Fed. 798, 799, 800, 802, G. C. Wis.) It is not necessary to show, in order to make out this offense, that the defendants actually, with their own hands, placed a letter or packet 53 in a post office. If it appears from the proof that it was done through their agency or direction, by an employe or agent of the defendants,, employed and directed for that purpose, it is enough. {Flemndng v. U. S., 18 Fed. 907, 908, D. G. N. D. of III.) Many men conduct fraudulent schemes and use their clerks and agents as tools without the clerks knowing the purpose of the prin- cipal in the scheme, and therefore the clerk is not guilty, because he does not know the ultimate purpose of his employer. But if the clerk knows the purpose of his employer from the outset, or at any time before the fraud is consummated, and cooperates in it, he is as guilty as the principal. {Flemming v. U. 8., 18 Fed. 907: 913,D.G.N.D.ofIll.). Nor is it necessary that it should appear in the proof that the defendants intended to convert to their own use all the money so obtained. If it was their purpose to convert any part of the moneys to their own use which persons were to be induced to send them for investment and employment in Fund W, then the offense is committed. {Flemvming v. U. 8., 18 Fed. 907, 909, D. 0. N. D. of III.) The interest of an accomplice who turns State's evidence, as it is called, is always to be considered as affecting his credibility. You are, however, the sole judges of his credibility. While it is proper for you to look for testimony corroborating the testimony (of an accomplice) , yet if, from the tenor of his testimony, you find it so co- herent, natural, and apparently truthful, that it satisfies you he has told the truth, then you have a right to convict on his testimony, even if uncorroborated. {Flefmming v. V. 8., 18 Fed. 907, 916, 917, D. O. N. D. of III.) If the indictment contains allegations sufficient to show a crime has been committed by the party charged, it is the practice of the Federal judge to take the same as a prima facie showing that a crime has been committed at the place alleged by the party charged ; and, if nothing else appears, to order a removal of the party charged. {Inre Wolf, 27 Fed. 606,609.) ' Good character is no defense against crime actually committed, and the jury are charged that, if the guilt of the defendant is plainly proven to the satisfaction of the jury, notwithstanding the evidence of his good character, then it is the duty of the jury to convict. {U. 8. V. Newton, 62 Fed. 276, 290, D. G. la.) There must be an agreement of two or more wills to carry into execution some unlawful purpose and some act or acts done in pur- suance of that agreement. This joint assent of minds may be proved by direct testimony, or may be inferred from facts which establish to the satisfaction of the jury that an unlawful combination had been formed. It is not necessary to prove that all the parties charged met together and came "to an explicit and formal agreement, or that they should all agree formally upon the details or plans by which the unlawful combination should be made effective. The offense is sufficiently proved if the jury is satisfied that two or more of the 54- parties charged entered into an agreement to accomplish a common and unlawful design, which was arrived at by mutual understand- ing, followed by some act done by any of the parties for the purpose of carrying it into execution. It is not necessary that each of the parties should in person commit the unlawful act, if such act is- a part of the plan for which the combination is formed ; for, the un- lawful agreement having been proved, the act, of one is considered the act of all. * * * j^qj. |g j^ necessary that it should be proved that all the parties originally combined together, or that each was an original contriver of the mischief, or that all were even ac- quainted with each other. {U. S. v. Barrett et al., 65 Fed. 62, 63, G. G. S. G.) It is also urged that * * * there was no proof of conspiracy tc> do what was done. * * * It is not necessary that direct evidence of a formal agreement should be given in such cases. If the evidence of the separate details of the transaction as it was carried out indi- cates with the requisite certainty the existence of a preconcerted plan and purpose, that is sufficient. {Reilley v. V. S., 106 Fed. 896- 906, C. 0. A. 6.) If * * * -^g should ignore the statement of the Government's counsel, and exclude evidence piecemeal, it might have the effect to withhold from the jury the evidence of a conspiracy, though, if the evidence should be admitted, and construed all together, the existence of a conspiracy or other crime as charged in the indict- ment, may be deduced therefrom. {U. S. v. Greene, 1^6 Fed. 784-, D. G. Ga.) It is as competent to prove an alleged conspiracy by circumstances as by direct evidence. In prosecutions for criminal conspiracies, the proof of the combination charged must almost always be extracted from the circumstances connected with the transaction which forms the subject of the accusation. (Z7. S. v. Gole, 163 Fed. 801, SOL D. G. Tex.) The effects and results of a conspiracy can be observed and proved, but rarely can one get a glimpse or make proof of the secret con- ferences which inaugurate it. For these manifest reasons proof of a criminal combination to do an unlawful act can rarely be made except by light reflected from its consequences or results. (Smith v. U. S., 157 Fed. 7U, 728, G. G.A8.) The rule of law is well settled that in conspiracy cases it is often necessary to resort to inferences, and that it is proper so to do. It is also settled that it is not required to prove by direct evidence an agreement to act together, and that " ordinarily it is only necessary to prove the acts of particular defendants, leaving the question of conspiracy to be deterijiined by inference." Wharton's Crim. Law (10th edition, 1896), sec. 1401. {Alkon v. U. S., 163 Fed. 810, 812, G. G.A.I.) For the purpose of determining whether a conspiracy was formed, and in determining whether or not defendants are guilty, you will have a right to consider the acts and conduct of (a coconspirator not 00 on trial). * * * one person may be convicted of conspiracy although, the other conspirator is not on trial. * * * the fact of a conspiracy may be gathered and derived by the jury from the combined and concerted actions of the alleged conspirators in the commission of the unlawful act. * * * if persons work together to advance an unlawful scheme, 'having its promotion in view, and actuated by the common purpose of accomplishing the unlawful end, they are conspirators. * * * if the ordinary, usual, and neces- sary result of the acts of these defendants was to violate the law * * *, the fact that they say now that they did not have any wrongful intent could not prevail against what would be the ordi- nary, usual, and necessary result of their acts. Persons charged with crimes will be held to have intended the necessary and actual results which would follow their acts. {U. 8. v. Breese, 173 Fed. JfO^, Jfi5, C. G. N. G.) In our opinion, the paper was admissible. It is true that it is not referred to in the indictment, but the rules of criminal pleading do not require the indictment to set forth the evidence. Evans v. U. S., 153 U. S. 684. The fact that it was prepared apparently with the purpose of sending it out is some evidence bearing upon the intention and alleged scheme of the defendants. In the case of an alleged fraudulent scheme, considerable latitude is permitted in the admission of proof of facts, both in support of and in denial of the charge. {Foster v. Z7. S., 178 Fed. 165, 178, G. G. A. 6.) The evidence was largely presumptive. The agreement was not reduced to writing and signed by the conspirators. It was not proved by direct oral evidence. From the nature of the case such proof was impossible. Conspiracies are not formed in that way. Conspirators do not go out upon the public highways and proclaim their intention. They accomplish their purpose by dark and sin- ister methods and must be judged by their acts. If the proof shows a previous meeting and a concert of action thereafter, each of the parties doing some act contributing to accomplish an unlawful pur- pose, a jury is justified in finding that they were conspiring together to accomplish that purpose. One who commits an unlawful act knowing that it is unlawful can not be heard to say that he did it with innocent intent. The law presumes that every sane person in- tends the necessary consequence of his acts. {Badin v. U. S., 189 Fed. 568, 570, G. G. A. ^.) * * * The commission of 50 per cent for the sale of United Wireless stock was most remarkable. A court may almost take judi- cial notice of the fact that the stock of a corporation selling for twice its par value does not require the payment of such a commission to dispose of it. If it does the selling price must be altogether artifi- cial. The inference must be either that the company is fraudulent if the commission is not excessive or that the commission is fraudu- lent if the company is what it purports to be. {Wilson v. Z7, 8., 190 Fed. m-439, G. G. A.S.) 56 The burden is not assumed of proving every averment of falsity, as well as the averment of fraud. {U. S. v. Smith, 2m Fed. 165, D. C.Pa.) The offense is the conspiracy alone, and overt acts are not a part of it, but simply a requirement to show it was not a mere evil con- ception of the mind, without move to accomplishment. U. S. v. Britton, 108 U. S. 199. * * * The indictment discloses that the bank, which defendants and their associates caused to forward the check for collection and to deposit the letter of transmittal in the mails, was ignorant of the scheme to defraud. * * * But re- sponsibility can not be avoided by the use of an innocent agency intentionally employed to reach and use the mails in effecting a scheme to defraud. {8pear v. U. 8., 228 Fed. Jp85, Ji.87, G. G. 8.) If he knew that the medicine was not a cure for the many ailments claimed for it, and in fact for none, the fact that many of those who used it believed that it had cured them would be no defense, no more than the defendant could have been found guilty, because some of those who had used his medicine did not obtain the relief expected from it, if, as a reasonable man he honestly believed, or had reason- able cause to believe, that it possessed the curative properties he claimed for it. The evidence of his patients bore on his intent, and therefore' was properly admitted by the court; but it was for the jury to determine from all the evidence what the defendant's inten- tion was, regardless of what some or all of his patients believed. {Samuels v. U. S., 232 Fed. 636, 6U, G. G. A. 8.) The mailing of letters may be shown by evidence of the custom and course of men's private offices and business. * * * The mailing of letters postage prepaid raises a presumption of their receipt by the addressee. * * * Proved copies of letters sent to an accused may be admitted in evidence, without otherwise ac- counting for the originals. {WatUngton v. U. S., 233 Fed. 21fl, G. G. A. 8.) Nowhere in the record is there a scintilla of evidence corroborat- ing the testimony of the three accomplices * * *_ Such cor- roboration is not necessary in the United States courts, although f re- • quently required by State statutes. {Erber v. TJ . S., 234 Fed. 221. 225, G.G.A.2.) The court's instructions concerning the testimony of an accom- plice " did charge the jury to the utmost extent about the necessity of using caution in scrutinizing the testimony of these witnesses * * * if in their judgment they believed, notwithstanding the corrupt source from which the testimony came, that it was neverthe- less true, they could render a verdict of guilty upon that testimony uncorroborated." "We think the instructions thus summarized are justified by Richardson v. U. S., 181 Fed. 9 ; Diggs v. U. S., 220 Fed. 645, affirmed 242 U. S. 470. * * * The decided weight of author- ity is in favor of the rule as laid down in the instructions. (Knoell V. U. S., 239 Fed. 16, G. G. A. 3.) 57 The action of the jury in acquitting all the defendants of the con- spiracy charge has (under the circumstances of this case), laid a heavy burden on the prosecution to uphold the conviction for sub- stantive offenses. The verdict of not guilty of conspiracy left for the jury's inevitable consideration a mass of testimony immaterial to the issues passed upon adversely to these (defendants) and their codefendants, yet extremely prejudicial to them * * * to ac- quit of conspiracy, and convict of substance, produces a condition requiring a scanning of the record to ascertain whether, under cover of the unsuccessful charge, the successful one (over due objection) has been bolstered up. (Bart v. TJ . S., UO Fed. 911, C. G. A. 2.) If believed by a jury, the testimony of an accomplice will sustain a conviction although no corroboration may appear. {Gretsch v. Z7. S., 2If^ Fed. 897,0.0. A. 3.) It appears that in most instances an agent entering theservice of the " agency " was required to acknowledge receipt of a printed circular * * * in which it was stated, among other things, that the solicitor's power was limited to soliciting and closing the printed contracts unchanged, and forbidding the use of testimonials except such as were supplied by the agency, and from securing busi- ness by other than "legal, legitimate, and truthful methods." * * * If all this has been in good faith, * * * ]^ might carry inference of the innocence of wrong doing of those in charge of the project; * * * but if , on the other hand, these fulsome warnings and notices appear from the evidence to have been merely a hypo- critical pretense devised and employed with the view only of pro- tecting from possible evil consequences of the scheme, * * * the fraudulent scheme and purpose is thereby only intensified. That this was really " an anchor to the windward " to provide for safety in time of stress, the jury was well warranted in concluding from the evidence. {Preeirum v. V. S., ^U Fed. 1-13, 0. 0. A. 7.) The evidence principally depended upon by the Government to es- tablish a fraudulent intent were the statements made by agents of the company to prospective purchasers of the contract. * * * The introduction of this evidence was strenuously objected to by the de- fendants. The objection was upon the ground that the representa- tions were not the representations of the defendants or the company. If there had been evidence of a single transaction only, or of isolated and occasional transactions, the contention might • have appeared meritorious. But the accumulated evidence, aided as it was by evi- dence of the subsequent conduct of the company, and by the corre- spondence with which the misrepresentations were always followed up, clearly indicates an established course of business, an important feature of which was systematic misrepresentation by agents. * * * They knew, and the managers of the company knew, that unless these persons were misled the contracts could not be sold. * * * The purchaser had a right to depend upon the statements of the agent, and a right to assume that the application and the con- tract were as represented by the agent. This right was not destroyed 58 by the circumstance that the company undertook to relieve itself of responsibility for the acts of its agents. The course of business and uniform correspondence indicates that the provision referred to in the application, to the effect that the purchaser had read the con- tract and understood it, was put there as part of the scheme to de- fraud and as tangible defensive matter when correspondence became necessary, rather than for the purpose of having the purchaser know the character of the obligations he was assuming, and of the rights which he was acquiring. * * * ipj^g defendants * * * were in active control of the affairs of the company. The representations made by the agents came to their attention. * * * Even if there were absence of evidence of specific cases of misrepresentation brought to the attention of defendants, familiarity with the general course of business would negative a claim of innocence. {White- head V. U. S., ^45 Fed. 386,396, G. G. A. 6.) The Supreme Court has said, what other courts have frequently said, that conspiracies are seldom capable of proof by direct testi- mony, and that a conspiracy to accomplish that which is their natural consequence may be inferred from the things actually done. East- ern States Eetail Lumber and Dealers' Association v. U. S., 234 U. S. 600. That court has also more than once said that it is important to keep in mind in a case like the present that the character and effect of a conspiracy is not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole. U. S. V. Patten, 226 U. S. 525. The court has also said that by purposely engaging in a conspiracy which necessarily and directly produces a certain result they are in legal contemplation intending' that result. TJ. S. V. Patten 226 U. S. 525. {Harriburg-American 8team Packet Go. V. V. S., %50 Fed. 7^7, (7. G. A. S!.) We think the court rightly submitted to the jury the question whether the use of the mails in collecting the check was not at least such a natural and probable consequence of the execution of the original scheme * * * as that all the participants would natu- rally have foreseen the likelihood that such resort to the mails would be had whenever it appeared expedient so to do in aid of the common purpose. (Shea v. TJ. S., 851 Fed. UO, G. G. A. 6.) In conspiracy cases, the proof must, from the very nature of the charge, consist largely of circumstantial evidence. Rarely can the Government find documentary proof of any unlawful combination to defraud it or to violate its laws. * * * The extent of the operations, and the similarity with which the illegal practices were conducted, invites the belief and justifies the conclusion that it was the result of a premeditated plan. {Jelhe v. U. S., 255 Fed.26L 280, G. G. A. 7.) The fact, if it be a fact, that codefendants of the plaintiffs in error, against whom the evidence was equally persuasive, were acquitted by the jury, is no reason for setting aside the judgment of conviction against (defendants). It was necessary for the Government to go no further than to establish a conspiracy as against any two or more 59 of the defendants on trial. (Bryant v. U. S., 257 Fed. 378, 385, C. G. A. 5.) The seventh assignment of error is to the refusal of the court to permit more than 13 witnesses for the defense to testify that they had been cured by defendants' daughter. This was material on the question of defendants' good faith, as showing their own belief in the possession by their daughter of the occult power claimed for her. About 150 witnesses were tendered on this point. The evidence offered was purely cumulative. * * * It is discretionary with a trial court to limit the amount of cumulative evidence, and in this case it does not appear that this discretion was abused. {Chapa v. V. S., mi Fed. 775, O.G.A.5.) Article 5. DEFENDANT'S RIGHTS. The waiver of the constitutional privilege of a defendant in a criminal case is a complete waiver and places the defendant in the same attitude as that of a defendant in a civil action who testifies in his own behalf. {Diggs v. U. S., mO Fed. 54.5, 551, G. G. A. 9.) An examination of this record convinces us that there has been no violation of these constitutional restrictions, either in an unrea- sonable search or seizure, or in compelling the plaintiff in error to testify against 'himself. No objection was taken at the trial to the introduction of the testimony of the oiScers holding the search warrant as to the seizure (of documents) ; the objection raised was to receiving in evidence certain private papers. * * * The ques- tion was not made in the attempt to resist an unlawful seizure of the private papers of (defendant) but arose upon objection to the introduction of testimony clearly competent as tending to estab- lish the guilt of the accused of the offense charged. In such cases the weight of authority as well as reason limits the inquiry to the competency of the proffered testimony, and the courts do not stop to inquire as to the means by which the evidence was obtained. The rule is thus laid down in Greenleaf , vol. 1, sec. 254a : " It may .be mentioned in this place that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered or otherwise unlawfully obtained, this is no valid objection to their admissibility if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question." * * * When papers are offered in evidence the court can take no notice how they were obtained, whether lawfully or unlawfully; nor would they form a collateral issue to determine that question. {Adams v. U. S., 192 V. S. 585, 594, 595.) Where the documents of a corporation are sought the practice has been to subpoena the officer who has them in his custody. But there would seem to be no reason why the subpoena duces tecum should not be directed to the corporation itself. Corporate existence im- 60 plies amenability to legal process. {Wilson v. U. S., 221 U. S. 86I1, 374.) The Fourth Amendment to the Constitution of the United States provides : " The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seiz- ures, shall not be Adolated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched, and the persons or things to be seized." * * * This protection reaches all alike, whether, ac- cused of crime or not, and the duty of giving to it force and effect is obligatory upon all entrusted under our Federal system with the enforcement of the laws. * * * The case in the aspect in which we are dealing with it involves the right of the court in a criminal prosecution to retain for the purposes of evidence the let- ters and correspondence of the accused, seized in his house in liis absence and without his authority, by a United States Marshal hold- ing no warrant for his arrest and none for the search of his premises. The accused, without awaiting his trial, made timely application to the court for an order for the return of these letters, as well as other property. This application was denied, the letters retained and put in evidence, after a further application at the beginning of the trial. * * * Under such circumstances, without sworn information and particular description, not even an order of court would have justified such a procedure, much less wa^ it within the authority of the United States Marshal to thus invade the house and privacy of the accused. * * * It is therefore evident that the Adams case (192 U. S. 585) affords no authority for the action of the court in this case, when applied to in due season for the return of papers seized in violation of the Constitutional Amendment. The decision in that case rests upon incidental seizure made in the execution of a legal warrant and in the application of the doctrine that a collateral issue will not be raised to ascertain the source from which testimony, competent in a criminal case, comes. * * * As to the papers and property seized by the policemen, it does not appear that they acted under any claim of Federal authority such as would make the amendment applicable to such unauthorized seizures. The record shows that what they did by way of arrest and search and seizure was done before the finding of the indictment in the Federal court, under what supposed right or authority does riot appear. What remedies the defendant may have against them we need not inquire, as the Fourth Amend- ment is not directed to individual misconduct of such officials. Its limitations reach the Federal Government and its agencies. {Weehs V. U. S., 232 U. S. 383, 389, 392, 393, 391^, 396, 398.) It is now well settled by the decisions of the Supreme Court of the United States that the right to inquire into the condition of cor- porations exists, and, if necessary for the purpose of enforcing a law, to compel the production of all books, letters, and other records without violating the provisions of the fourth and fifth amend- 61 ments to the Constitution of the United States. {Stamdard Home Co. V. Dmis, 217 Fed. 904, 916, D. C.) " James J. Farmer was arrested on November 14, 1912, and held to bail, which was at once furnished. He then went to his office, which was also the office of the corporation defendant, and found some post-office inspectors, who had a subpcsna duces tecum calling for all papers, etc., and were threatening to remove them. A heated dis- cussion followed, at the close of which a Mr. Weill, a lawyer who was present as Farmer's legal adviser, asked the officers if they would give their word that, if the bags were sealed, they would not be opened until defendant Farmer should appear before the grand jury on November 15, 1912. The promise was given" (and kept). * * * For the purposes of the present assignments of error * * * it may be assumed : 1. That the officers exceeded their au- thority in removing the papers. 2. That the acts of the defendant and. counsel (Weill) on the occasion of their removal did not operate as a waiver or estoppel to defeat defendant's right to assert his constitutional privilege and to insist on their return. {Farmer v. U. S., 223 Fed. 903-908, G. 0. A. 2.) The question discussed is whether , the wife of one of the conspirators was a competent witness. * * * fjjg husband in this case was not on trial. He had been eliminated by his plea of guilty. The wife was not, therefore, testifying against her husband on the face of the record, and was in consequence not incompetent generally. Her testimony, moreover, was confined to facts affecting only the defendants on trial. * * * The wife might have testified to the guilt of the defendants on trial without in any way implicat- ing her husband. ( U. S. v. Knoell, 230 Fed. 609, 511, D. 0.) Admission of testimony given by (defendants) before the referee (in bankruptcy). The objection is that this testimony was given imder compulsion, and therefore could not be used in a criminal trial. But the objection is not founded on fact. No doubt (defendants) appeared before the referee in obedience to a subpoena, but there was no other compulsion. They were attended by counsel, and were examined without claiming the right to be silent because their answers might incriminate them. Burrell v. Montana, 194 U. S. 572. Clearly the subpcena did not compel them to testify; it only com- pelled them to attend ; and whatever testimony they gave afterwards -without claiming their privilege was voluntary, and could be used against them in a subsequent proceeding. * * * we see no room for doubt -that the testimony now objected to was voluntary and was properly admitted. Hardy v. U. S., 186 U. S. 224. {Knoell v. U. S., 239 Fed. 16, 21, G. G. A. 3.) In the case of Adams v. New York, 192 U. S. 585, it was adjudged, among other things, that the fact that papers which are pertinent to the issue may have been illegally taken from the possession of the party against whom they are offered is no valid objection to their admissibility; that the court considers the competency of the evi- dence, and not the method by which it was obtained. * * * jjj 62 the late case of Weeks v. United States, 232 U. S..383, the Supreme Court, while holding that the Federal courts can not, as against a seasonable) application for their return, in a criminal prosecution, retain for the purposes of evidence the letters and correspondence of the accused, seized in his house, during his absence and without his authority, by a United States Marshal, holding no warrant for his arrest or for the search of his premises, still adhered to the rule laid down by it in Adams v. New York, to the effect that a collateral issue will not be raised to ascertain the source of com- petent evidence, although illegally obtained, where no application had been made by the accused for its return before trial. {Lyman V. U. S., m Fed. 9Ii£,G.G.A.9.) In the case under consideration, the papers offered in evidence were taken by a State officer, acting under and in pursuance of a search warrant issued by the municipal court of the city of Boston, and no steps were taken or proceedings instituted for a return of the papers, or for determining the validity of the complaint and war- rant before the trial, nor was the indictment attacked before trial in any way, because obtained upon illegal evidence. Weeks v. U. S., 232 U. S. 398. * * * If other letters besides those described in the warrant were taken, their seizure was incidental, and was made in the execution of the warrant. We find, therefore, no error in the admission of all. {Rice v. U. S., 251 Fed. 778, C. G. A. 1.) The law is now well established that a corporation is not privi- leged from the production of its books and papers, even though they tend to incriminate an officer thereof. Johnson v. U. S., 228 U. S. 457; Grant v. U. S., 227 U. S. 74; Wheeler v. U. S., 226 U. S. 478; Wilson V. U. S., 221 U. S. 361. {Linn v. U. S., 251 Fed. }^76, 479. G.G.A.%.) These letters contained admissions of the defendant against his interest at this trial and there was no error in overruling the objec- tion to their admission. {'Wine v. V. S., S60 Fed. 911, G. G.A.7.) Only confessions should be admitted where it clearly appears that it was the free act of the defendant, without any inducement, threat, or other influence. In this instance, *. * * ^^ testimony shows that defendant for a period of almost 24 hours, excluding the time he was asleep, was continuously plied with questions by five in- spectors and all manner of questions propounded to him about the circumstances under which the package in question was lost. * * * Under the circumstances, according to the testimony of the in- spectors, we think this alleged confession is clearly inadmissible, {Purpura v. V. S., 262 Fed. IflS, G. G. A. 4.) Instructing the jury that it was their province to ascertain the truth of the matter, the court said ; * * * being a defendant, he could not be required to say more if he did not desire to do so ; nor could he be cross-examined as to matters not covered by his direct testimony. But in passing upon the evidence in the case( for the purpose of finding the facts you have a right to take this omission of the defendant into consideration. * * * -^vhere a. defendant 64 court, that the failure of the defendant, who had taken the stand in his own behalf, to explain incriminating circumstances, might not only be commented upon by counsel but might be considered by the jury, with all other circumstances, as to his guilt or innocence. {Le More V. Z7. S., 263 Fed. 887, 897, C. G. A. 5.) The defendant had voluntarily offered himself as a witness in his own behalf, and evidence that he had been convicted of other crimes was clearly admissible as bearing upon his credibility. (MaoKnight V. V. K, %63 Fed. 832, 8^0, G.G.A.l.) Article 6, REASONABLE DOUBT. A reasonable doubt, as I have used that term, is what the term indicates. It is a doubt based on reason, and which is reasonable in view of all the evidence. It is an honest substantial misgiving, generated by insufficiency of proof. It is not a captious doubt, nor a doubt suggested by the ingenuity of counsel or jury, and unwar- ranted by the testimony ; nor is it a doubt born of a merciful inclina- tion to permit the defendant to escape conviction, nor prompted by sympathy for him or those connected with him. But if, after an impartial comparison and consideration of the evidence, you can candidly say that you are not satisfied of the defendant's guilt, you have a reasonable doubt. {District Judge Woolson, 62 Fed.'290.) The burden of proof in all criminal cases being upon the Govern- ment, the presumption of innocence protects the accused until the jury is satisfied beyond a reasonable doubt that he is guilty. You must not convict unless you are convinced, but, if the proof satisfies you that the accused are guilty, you should not refuse to convict because of some remote, far-fetched, or merciful suggestion or con- jecture that possibly they may be innocent. Absolute certainty is rarely possible, and those vague uncertainties to which some minds are always, and all minds are sometimes, liable are not within the contemplation of the law when it directs that the accused shall have the benefit of the doubt. It is not every doubt, however slight or however founded, which should prevent a verdict of guilty. It is not the mere possibility of innocence, or vague notions or capricious doubt, that is intended. If the evidence has produced in your minds a moral certainty that the accused or any one of them are guilty you will say so; and if there is a rational uncertainty, growing out of the testimony and sustained by it, and producing a reasonable, sub- stantial doubt as to their guilt, you should not convict. {U. S. v. Barrett et al., 65 Fed. 62, 67, G. G. D. 8. G.) There was no error in charging the jury that " by the term reason- able doubt is meant not a capricious' doubt, but a substantial doubt — a doubt that you can gj.ve a reason for if the court called on you to give one." The definition of " reasonable doubt " as being a doubt for which a reason can be given is frequently adopted by trial judges. {Marshall v. U. S., 197 Fed. 611, 512, G. G. A. 2.) INDEX TO CASES. Page. Adams v. .V. Y^ 45,61,62 Ailamsv. V. 8 59,60 Adler, V. S. v 40 Agtiew V. U. 8 13, 51 Alkon V. U. S 54 American Tohacco Co., V. 8. v 50 Anderson v. V. 8 , 50 Anglo-American Packing and Provision Co. t. Cannon 41 Badders v. V. «_..__ 7 Bailey v. Warner * , 44 Baird v. V. 8 ' 14 Baker, V. 8. v 40 Ball, U. 8. v.'_ ^ 27 ' Balliet v. U. 8.\ 63 Bannon and Mulkey v. V. 8 , 38, 39 Barnow, U. 8. v . 39 Barrett, V. 8. v 34,53,64 Beavers v. Renkel 51 Belden v. V. 8 10, 43 Benson, U. 8. v '. 22, 39 Bettman v. U. 8 : 16 BilUngsley v. V. 8- 31 Black, Ex parte 32 Blits V. V. S.' - 25 Bonfoey v. U. 8 25 Bopp, U. 8. V 27 Bowers v. U. 8 20 Brace, V. 8. v : 29 Bradford v. V. 8 : 1 32, 37 Breese, U. 8. v 54 Briggs v. Hervey ' 41 Britton, V. S. v.'__3 30, 56 Brooks V. U. 8 . 23, 42 Brotvn v. Elliott 36, 38 Brovm v. V. 8 23 Brownlie v. Campbell^ . 12 Bryant \. V. 8 51, 58 Burrell v. Montana * - 61 Byron v. U. 8 49 Caminetti v. U. 8 62 Caminetti and Diggs v. V. S.' 63 Cassidy,'U. 8. v „_ 34 Chadtmck v. V. 8 29, 42 Chambers v. V. 8 IS, 21, 46 Chapa V. V. 8 .. 59 ' Cited but not quoted. 29961—21 5 (65) 66 Page. Charles v. U. S 15 Ching v. U. S • 40 Cltine V. U. S.' 48 C'offln V. U. S.' 25 Colhum V. U. 8} 23 Cole, V. S. V 54 CoiKer v. U. S 33 Colt V. U. S - 49 Commonwealth v. Hunt ^ '■ 39 Comyns, tj. 8. v 12 Cooper V. ?7. S 45 Cram v. U. S/ 25 Crarae v. U. 8 : 19 Craioford v. U. S.' : — 40 Cruikshank, V. 8. v 22 Curley v. i7. S _' 29 Currier v. B. & M. Ry. Co^ .' 50 Dahl V. V. S.' 40 lieBara, In re 9 De Laoey v. V. 8 39, 41 Demolli v. V. 8 13 Depew V. V. 8 11 Derry v. Peek * '. .— 1^ Dexter, U. 8. v ___:_1_________ . 8,42 Viggs v. V. 8 56, 59, 63 Donau, V. 8. v.' : ^ 33 Durla/nd v. U. S . 8, 9, 11, 12, 13, 23 Eastern 8tates Retail Lumlier and Dealers Ass'n. v. U.S.* 58 Eccles, U. 8. V ; 30 Edwards v. U. 8 . 19 Emanuel v. U. iS.* — . . ___. : 26 Erber v. U. 8 56 Evans v. U. S.'_— . ; 55 Farmer v. U. 8 _______ 10, 39, 44, 49, 61 Faulkner v. U. S.^ '. . . 15 Faust V. U. 8 24 Fitzpatrick v. V. S.' ; : 44 Flagg v. U. 8 a 45 Flemming, U. 8. v * 12, 52, 53 Foster y. U. 8 8,14,18,24,25,43,50,55 Francis v. U. 8 26 Oantt V. U. 8} 33 Gardner v. V. 8 23 Gilson V. U. 8 33 Goldman v. l^. 8 32 Goode V. U. S.' 20 Gould V. V. 8.^ 1 ~ 23 Gouled, V. 8. v 4O Grant v. V. 8.^ g2 Green v. Henkel ' 52 Green, V. 8. v 42 54 Gretsch v. U. 8 _ 32 57 ' Cited but not quoted. • 67 Page. Grimm v. V. 8. 51 Gniher v. V. S.' 41 Bang V. Henkel. 39, 52 Hale V. Henkel * 50 Hallowell v. V. S 47, 50 Hamhurg-American SteamPacket Co. v. V. S 1 47,58 Hanley v. XJ. S - 20 Hardy v. V. S 35, 61 Harris v. Rosenborger 14, 16, 18 Harrison v. V. S 9,15,48 Hart V. XJ. S 57 Hendrey v. V. 8 20 Henry, In re'-l 21 Hindman v. First National Bank of Louisville 12 Hirsch, V. 8. v.' 1 31 Hoefflinger, V. 8. v _' 24 Holsman v. V. 8 46,47 Horman v. V. 8 13, 16 Houston V. V. 8 32,38,39,40,41,43 Howell, V. 8. V '•_ 32, 41 Howenstine v. U. 8 41 Hughes v. U. 8 ^ 16, 46 Hume V. V. 8 22, 42 Hyde v. 8Mne ' 36 Hyde v. U. S 19, 28, 31, 33, 34, 36 Irvine, V. 8. v.^ 28 Isenhour v. U. 8 48 Jackson, Ex parte 7 Jelke V. U. 8 ' 31, 58 Johnson v. f7. S.^ 62 Jones V. V. 8 85, 38, 49 Jung Quey v. V. S 32 Kane, U. 8. v 34,35 Kenney, V. 8. v 48 Kenofskey, U. 8. v 11 Kissel, V. 8. V 26, 28, 36, 38 Knoell, V. 8. x 61 Knoellx. V. 8 56,61 Lang v. V. 8- 68 Lemony. U. 8 i . 8,9 Le More v. V. 8 1^ 9, 63 Lewis V. V. 8 - 19 Unn V. V. 8 17, 25, 45, 62 Logan v. U. 8 - 33, 43 Lonaiaugh v. 77. S.'_— ; 36, 38 Looker v. U. 8 . 18 , Loring, U. 8. v_: 8, 24 Lyman v. TJ. 8 ; '. 61 MacAndrews and Forbes Co., V. 8. v 20 MacKnight v. V. 8. ' 64 Marrash v. U. 8 _: 30 Marrin, V. 8. v 21, 43 — 'Cited trut not quoted. 68 . Page. Marshall \. V. 8 — ^ 49,64 Maxey v. V. S - . ^^ McGlendon v. U. S 44 McOonkey v. U. 8 S> 14, 18 McGregor v. U. 8 13, 24 McHugh, U. 8. V 31 McKnigJit v. V. 8 13, 47 McLean, Dr. J. H., Medicine Co. v. U. 8 47 Menefee v. U. S 1^ Meyers v. U. 8 38 Miller v. U. 8 8, 40 Mitchell V. V. 8 20 Moffatt V. U. 8 17,20,45 Moses V. V. 8^ ^ 44 Mounday v. V. S_ 10 Murray v. V. 8 46 Myers v. U. 8 16 Myriolc v. U. 8.'^ 63 National Ace. 8oc. v. 8piro 50 Nero 8outh Farm and Home Co., U. 8. v 8 Newton, V. 8. v 29,32,44,53 Oesting v. 17. 8 10 O'Hara v. V. S— '_ 13,23 Oioen, U. 8. v 28 Packer V. U. 8 48 Palliser, In re ' 19, 36 Patten, U. 8. v." 58 Pettibone v. U. 8 39 Pierce, V. 8. v 23 Plyler, U. 8. v.^ 39 Pointer v. V. S.' 22 Preeman v. U. 8 11, 33, 46, 57 Price V. Henkel 52 Proffiit V. U. 8 33 Purpura v. V. 8 , 62 Rabiiwwitz, V. 8. v.' 32 Radin v. 17. 8 . 55 Raley, U. 8. v.' 38 Reilley v. U. 8 54 Rice V. V. 8 ' 62 Richards, U. 8. v ^^ 30 Richardson v. V. 8.^ ^1 56 Ridden V. V. 8 ^^ 11, 22,49, 50 Rimmerman v. V. 8.'- ; 10 Ripper v. U. 8 43 Roberts v. U. 8 25, 35 Robinson v. U. 8 25, 36 Rose V. U. 8 ' 44 Rumble v. U. 8 10, 24 Ruthven v. U. 8 25 Ryan v. V. 8 30 Samara v. U. 8 35 1 Cited but not quoted. 69 Pago. Samuels v. U. 8 , 44, 56 Schemberg v. V. S 15 Schench, V. 8. v 35 Schlatter, V. 8. v 17 Schwartzierg v. V. S 26, 2T Scofleld V. Parlin and Orendorff Co 41 Shea V. U. 8— 36,45,50,58 Sidebotham v. U. 8 22 Smith V. U. 8 54 Smith, V. 8. v 56 Sparks v. U. 8 18 Spear v. U. 8 56 Staats, V. 8. v." . ^ 39 Standard Home Co. v. Davis 60 Stanley v. TJ. 8 , 26 Staples, V. 8. v 12 Stern v. V. 8 21 Stever, TJ. 8. v 8, 18 Stewart v. U. 8 22 Stickle, V. 8. V 52 Stokes V. V. 8.^ : 10 Streep v. U. 8 20 Sturm V. Boker 50 Sweeney, TJ. 8. v 35 Thomas v. TJ. 8 48 Trent v. U. 8 10 TurnbuU v. Payson ' 50 Van Gesner v. TJ. 8.^ 49 Walker v. V. 8 23 Walsh V. V. 8 49 Ware v. U. 8 26, 37 Watlington v. U. 8 56 Weeber v. U. S.' ; 13 Weeks v. V. 8 -■ 60, 62 Wheeler v. U. 8.^ 62 White V. V. 8 -, 50 Whitehead v. U. 8 18, 57 Wiborg v. U. 8 33 Williamson v. TJ. 8 52 Wilson V. U. 8— . 14i, 16, 22, 43, 50, 55, 59, 62 Wine V. V. 8 ^ 19, 62 Wolf, In re . 53 Woodward v. Chicago, etc.. By. Co.^ 44 Woolson, District Judge, on reasonable doubt 64 Wordm v. U. 8 49 young, V. 8. v 9,11,25 ' Cited but not quoted. o KF 2663 .1 U58 "' Tf.S. Co-urts. Vol. ™' Digest of decisions of U.S. coiirts . Copy Date Borrower's Name B'i'ii'.Wf.ff'3