HUME v. UNITED STATES, 118 F. 689

SHELBY, Circuit Judge, after stating the case as above, delivered the opinion of the court. In this, as in every case coming to this court on writ of error, we are only to examine questions of law. The evidence is not brought here to be reviewed.

We must assume, therefore, that the evidence was sufficient to substantiate the charges in the indictment that the plaintiff in error, with others, fraudulently devised the scheme to defraud, and that this scheme was to be carried on .and effected by the use and means of the post-office establishment of the United States^ and that the scheme was carried out with the intention and purposes as charged. So far, therefore, as the moral element is concerned, it must be taken in this court that the guilt of the plaintiff in error was established.

The record and assignment of errors raise three questions to be decided: (

i) Is the indictment fatally defective because it fails to charge W. J. Hume with the commission of any offense?

(2) Is the indictment fatally defective because the dates therein stated are repugnant and contradictory?

(3) Did the court err in instructing the jury as stated in the bill of exceptions? If any one of these questions is answered in the affirmative, it would be our duty to reverse the judgment; but if they are all properly answered in the negative, and the trial court has not erred, it is equally our duty to affirm the judgment.

Section 5480 of the United States Revised Statutes, as amended by the act of March 2, 1889 (25 Stat. 873 [U. S. Comp.

St. 1901, p. 3696]), so far as it is applicable to this case, is as follows: “If any person', having devised or intended to devise any scheme or artifice to defraud * * * to he effected by either opening or intending to open correspondence or communication with any person, whether resident within or outside the United States, by means of the postoffice establishment of the United States, or by inciting such other person or any person to open communication with the person so devising or intending, shall, in and for executing such scheme or artifice, or attempting so to do, place or caused to be placed any letter * * * in any postoffice * * * of the United States, to be sent or delivered by the said postoffice establishment, * * * such person so misusing the postoffiee establishment shall, upon conviction, be punishable by a fine of not more than $500 and by imprisonment for not more than 18 months, or by both,” etc.

The indictment is found under this statute. The scheme to defraud is well averred, and then it is alleged that L. J. Guynes, acting for himself, and in conjunction with A. Effron and others, including the plaintiff in error, in pursuance of such scheme and artifice to defraud, did on April 6, 1896, wrongfully and unlawfully deposit in a certain post office of the United States, to wit, the post office at Mexia, Limestone county, Tex., in the Northern district of Texas, a certain letter, the address and contents of which are given.

A like charge is made as to another letter deposited in the same post office on June 26, 1896. It is contended that as the indictment charges that L. J. Guynes, in depositing the letters, was “acting for himself,” it charges no' offense against Hume. The indictment, of course, must be construed as a whole. It had already been alleged that Hume participated in the scheme or artifice to defraud, and that the depositing of the letters was in pursuance of this scheme. And the indictment goes further than to say that Guynes was acting for himself. It adds, “and in conjunction with A. Effron and * * * _ W. J.

Hume.” It is urged by counsel that it is “difficult to determine” just what is meant. But we must take it that the word “conjunction” was used with its ordinary meaning,—“the state of being conjoined, united, or associated”; “union, association, league.” Webst. Diet. Placing that meaning on the word, it seems clear that the grand jury charged that Guynes, in posting the letters, was acting for himself, in union with the other defendants who concocted the scheme to defraud.

But had we concluded otherwise, by another paragraph in the indictment the defect would have been obviated, for it is charged that the defendants, including W. J. Hume, “did deposit and cause to be deposited” in the same post office, in pursuance of the same scheme and artifice to defraud, a large number of other letters, drafts, bills of lading, circulars, and other documents, which are not copied or described. While it would have been better pleading to have given the contents of these letters, also, the omission does not constitute a fatal defect. Durland v. U. S., 161 U. S. 306, 315, 16 Sup. Ct. 508, 40 L.

Ed. 709. A conviction could be properly predicated on this charge as to letters not embodied, which of itself makes the indictment good, so far as this point is concerned.

It is also claimed that the indictment is fatally defective because it does not aver that the letters were “so deposited to be sent or delivered by the said post-office establishment.” It is true that neither this averment nor its equivalent immediately follows the allegation of the posting of the letters that are set out in the indictment; but after averring the depositing of other drafts, letters, bills of lading, etc., we find the words “all of which said above-mentioned letters, drafts and bills of lading so deposited in the post office of the United States were so deposited for the purpose of being carried and delivered through the mail.” This averment is not overlooked by the distinguished counsel for the plaintiff in error, but it is contended that “the grammar requires it to be restricted to the letters enumerated in the same sentence.” We think the words “all of which said above-mentioned letters” were intended to include and do include all of the letters which had been previously mentioned in the indictment.

But if it be conceded that punctuation and grammatical construction would confine the reference to the letters last above mentioned, it must be held that an indictment may be ungrammatical, and yet good as matter of law. 2. It is contended that the indictment charges that the scheme or artifice to defraud was devised September 30, 1896, and that it also avers that the letters which are set out were deposited, respectively, on April 6, 1896, and June 26, 1896, and that their deposit, therefore, could not have been in furtherance of the scheme devised in the following September.

The contention is that the dates as given in the indictment cause a repugnancy that is fatal to it; that the deposit of the letters could not have been pursuant to a scheme to defraud which was concocted after the letters were posted. This contention, we think, is not sustained by the language of the indictment. It charges that on the 30th day of September, 1896, E. J. Guynes and others, including W. J. Hume, “having theretofore unlawfully, knowingly, and fraudulently devised a scheme and artifice to defraud,” etc.

Then the indictment proceeds to describe the scheme, and aver the posting of the letters, and in alleging the depositing of the letters the other dates are given. It will be observed that it is not averred that anything was done on the 30th day of September, 1896. That date is given, followed by the expression that the defendants named in the indictment “theretofore unlawfully, knowingly,” etc.

The charge, therefore, is that the things averred were done before the 30th day of September, “theretofore” meaning “before then.” It was probable the pleader, in inserting this first date at the place where, in the forms of indictment which are usual in the federal courts, dates are inserted, intended at first to allege it as the date of the posting of the letters, and then to make the averment that theretofore, or before the time the letters were posted, the scheme to defraud was formed. But later, when the posting of the letters is described, the actual dates are given on which they were posted.

The indictment certainly does not aver that the scheme was concocted on the 30th day of September, 1896. If that date can be made to relate to the formation of the scheme, it is followed by an averment that it was theretofore devised; that is, deyised before that date. However this may be, it is a well-settled rule of criminal practice that the date of an alleged offense, as stated in an 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.

It is the practice to name in the indictment a date on which the offense was committed, “but, in the absence of a special reason rendering it important, this allegation is mere form, and the time proved need not be the same as laid.” 1 Bish. New Cr. Proc. § 386. The supreme court has recently said that the “date named in an indictment for the commission of the crime of murder is not an essential averment. Proof that the crime was committed days before or days after the date named is no variance.” Hardy v. U. S. (Oct. term, 1901) 22 Sup. Ct. 889.

As the averment of time need not be proved as laid, it is clearly matter of form. U. S. v. Jackson (C. C.) 2 Fed. 502; Crass v. State, 30 Tex. App. 480, 17 S. W. 1096. It appears from the record that the indictment in this case was filed in court on January 13, 1899. Whether it be construed as averring that the offense was committed in September or in April of 1896 is immaterial. Both dates were before the finding of the indictment. The government would be permitted to prove that the offense was committed on any day within the statute of limitations prior to that on which the indictment is found.

It is true that the indictment is subject to criticism. It is not entirely grammatical, and its statements are not clear and orderly. It could be abbreviated and made clearer. But its defects are all matter of form. It contains a substantial accusation of crime, and its averments furnish the accused with such a description of the charge against him as would enable him to make his defense, and avail, himself of his conviction or acquittal for protection against further prosecution for the same cause.

From it the court can determine that the facts alleged are such that they are sufficient in law to support a conviction. We find no defect in it that would tend to prejudice the defendant. By the words of the statute, no indictment shall be deemed “insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.” Rev. St. U. S. § 1025 [U. S. Comp. St. 1901, p. 720].

The court should see to it that the whole proceeding is such as to do justice to the defendant; that the charge against him is sufficient, and his trial fair. But no one should be permitted to escape the just penalties of the law upon nice questions of parsing or grammatical construction, or upon questions involving “matter of form, only, that do not prejudice the defendant.” 3.

On the following excerpts from the bill of exceptions two of the assignments of error are based; “After the United States of America had introduced evidence tending to prove that the defendants Effron and Guynes had deposited nonmailable matter in the United States post office at Mexia, Texas, at or about the time laid in the indictment, and that the defendant Hume had never been at the town of Mexia, Texas, and had not with his own hands deposited any such nonmailable matter in the United States post office at said place, but that the evidence tended to show that the defendant Hume, at and during the mailing of said nonmailable letters and mail matter by his codefendants at Mexia, Texas, was in the city of New Orleans, where he resided, and was not present at the time of mailing of said nonmailable matter at Mexia, * * * the court, of its own motion, and in its general charge, instructed the jury upon the law, as it related to the defendant W.

J. Hume, as follows: ‘The testimony shows the residence of the defendant W. J. Hume to have been in New Orleans. He was not present at Mexia at the time the letters in evidence were deposited in the post office of the United States at that point. However, if he was a party to the scheme or artifice to defraud at the time of its inception, if such there was, he would be as guilty as one who, with guilty knowledge of the scheme or artifice to defraud, might have placed with his own hands letters in the post office of the United States in furtherance thereof.

If he was ignorant of the scheme or artifice to defraud, and had no

part in devising or assisting in it at the time of its inception, and you should so find, it would be your duty to acquit him.’ Whereupon, before the retirement of the jury, the defendant Hume, by counsel, excepted to the charge of the court as stated above, on the ground that the evidence failed to show that the defendant Hume was present and participated in the act charged in the indictment against his codefendants, and, in the law, was not liable for the acts of his codefendants in improperly using the United States mails as charged in the indictment; and the defendant Hume, by counsel, moved the court to instruct the jury to that effect, which the court refused to do.” The objection to this instruction, and the request by which it is followed, are based on the theory that the defendant Hume could not be convicted as a principal in the offense charged; he being absent and in Louisiana when the letters were posted in Texas.

The contention must have been that Hume, if connected with the crime, could not be a principal, but would be an accessory before the fact. This contention, we think, cannot prevail. If the offense charged in the indictment is a misdemeanor, all who aid and abet or participate in its commission are principals, and are to be indicted and prosecuted as such; the doctrine of principal and accessory being applicable only to felonies. U. S. v. Gooding, 12 Wheat. 475, 6 L. Ed. 693; U. S. v. Mills, 7 Pet. 137, 8 L. Ed. 636; 1 Bish. New Cr. Law, § 656.

A crime may be “infamous,” within the meaning of the fifth amendment of the constitution, and yet not be a felony. Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89. There is no general definition in the federal statutes separating and defining felonies and misdemeanors. When a statute, therefore, creates an offense, and does not define it to be either a felony or a misdemeanor, we must look at the common law to determine which it is; and, although the old tests are obsolete, an 'offense is held to be a felony which was such when those tests were operative.

But usually, where a statute creates a noncapital offense, not declaring it to be a felony, it will be deemed a misdemeanor. 1 Bish. New Cr. Law, § 616. In the absence of a legislative determination of the grade of the offense by the statute creating it, and of a general statute defining felonies, it has been said by the supreme court “that the word is used to designate such serious offenses as were formerly punishable by death, or by forfeiture of the lands or goods of the offender.” Bannon v. U. S., 156 U. S. 464, 15 Sup. Ct. 467, 39 L. Ed. 494; 1 Bish. New Cr. Law, §§ 615, 616.

But if the offense were a felony to which the doctrine of principal and accessory was applicable, the result, we think, would be the same.

As all the evidence has not been preserved, we must assume that it was proved that the plaintiff in error, with others named, did devise the scheme and artifice described in the indictment in which Hume was to perform, and did perform, a certain part,—that is, to furnish linters for the purpose of shipping the same, —and, when so shipped, bills of lading were to be made out, and drafts drawn against the linters, indicating cotton of a higher and better grade, and that by this means the scheme was to be carried, and was carried, into effect. Durland v. U. S., 161 U. S. 306, 312, 16 Sup. Ct. 508, 40 L. Ed. 709.

Now, assuming, as we must, that it had been proved that Hume performed his part as alleged in carrying out this scheme, it was not necessary, to make him a principal in the crime,—assuming it to be a felony,—that he should have been present in the Northern district of Texas when Guynes posted the letters, for, “where several acts constitute together one crime, if each is separately performed by a different individual in the absence of the rest, all are principals as to the whole.” 1 Bish. New Cr. Law, § 650. Again, there is nothing in the bill of exceptions to show that it was not proved, as charged, that W. J.

Hume caused the letters to be deposited in the post office pursuant to the scheme to defraud, or that they were not deposited by Guynes, in conjunction or association with Hume, pursuant to the fraudulent scheme. The objection is based solely on the unsound theory that Hume’s personal presence at the time the letters were posted was necessary, to make him guilty. If he caused the letters to be deposited, or if they were posted pursuant to a scheme to which he was a party, he is properly convicted, although he was not present when the letters were posted.

The record not disclosing any error, the judgment of the district court must be affirmed. PARDEE, Circuit Judge, dissents.