TILLERY v. UNITED STATES, 285 F. 119

BRYAN, Circuit Judge (after stating the facts as above). The court charged the jury that the burden was on the government to prove that the defendant, alone or acting with others, devised the scheme set out in the indictment; that he intended to use the scheme to defraud; that for the purpose of executing such scheme he mailed, or caused to be mailed, the letters and other mail matter set out in the indictment; and that the defendant should be acquitted unless these essential matters were proven bej^ond a reasonable doubt.

The court refused defendant’s request for a peremptory instruction to the jury to return a verdict of not guilty on all counts, and further refused special requests upon the evidence to the effect that the defendant should be acquitted if the letters and papers were mailed as an independent act of the bank, and without defendant’s knowledge or direction. The court also refused a request to charge that the existence of a scheme to defraud was sought to be established by circumstantial evidence; but that request also embodied the idea that the scheme existed only for the purpose of defrauding the witness Kite.

Defendant assigns error upon the overruling of a demurrer to each count of the indictment, upon the sufficiency of the evidence to sustain the verdict, and upon the refusal to give his special requested instructions in charge to the jury. The scheme to defraud set out in the indictment and the use of the mails in connection therewith are sufficiently pleaded, and the trial court did not err in overruling the demurrer. United States v. Young, 232 U. S. 155, 34 Sup. Ct. 303, 58 L. Ed. 548; Badders v. United States, 240 U. S. 391, 36 Sup. Ct. 367, 60 L. Ed. 706; Byron v. United States (C. C. A.) 273 Fed. 769.

It was not error to refuse the requests for a verdict of not guilty upon the ground that the evidence was insufficient upon all the counts to justify a conviction. As to the first and second counts, the evidence sustained every material allegation. Kite gave testimony in support of every element of the scheme to defraud. The testimony of other witnesses showed beyond controversy the use of the mails. According to Kite’s testimony the jury were warranted in arriving at the conclusion that the post office establishment was used at the suggestion and upon the initiative of the defendant.

It is specially contended that there is a variance between one of the allegations of the third count of the indictment and the evidence offered in support of it. The allegation is that the scheme contemplated that the final false pretense would be that defendants had lost all the money theretofore won; whereas the evidence is that Tillery’s last' representation to Kite was that he had won. The question of variance was not presented to the court at the trial. No ruling was asked upon the sufficiency of the evidence in support of this particular count.

If the objection now raised could have been obviated at the trial, no reversible error is shown. 21 R. C. L. 606. It may be that it was within the power of the government to prove that Tillery, or some of the other defendants, made the representation that the proceeds of the speculation, which was reported as being a winning one, had thereafter been lost. The telegram mailed to St. Rouis indicates that Tillery was preparing the way to make a claim of that nature.

The special requests for charges upon the evidence, in so •far as they were proper, were adequately covered by the able and-exhaustive charge which the court gave of its own motion. The requested charge upon circumstantial evidence was in our opinion properly denied. It is not error to refuse a request to charge, unless it is correct in every particular. Blanton v. United States, 213 Fed. 320, 130 C. C. A. 22, Ann. Cas. 1914D, 1238; 14 R. C. L. 800.

The charge here refused not only stated that the evidence of thp scheme to defraud was entirely circumstantial, but also that the jury must find that the purpose of the scheme was to defraud the witness Kite. The scheme set out in the indictment was much broader than that. It was a general scheme to defraud anybody who could be victimized by it. The charge was, not that defendants planned the scheme with any particular person in mind, but only that, in pursuance of it, Kite was selected as a victim.

On the whole the fraudulent scheme charged and by which Kite was duped appears to have been well sustained by the evidence. The judgment is affirmed. <@E5>For other cases see same topic & KEY-NXJMBBH in all Key-Numbered Digests & Indexes