LARKIN v. UNITED STATES, 107 F. 697

WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. The indictment in this case, it is to he observed, does not charge a scheme to defraud the public generally, or to defraud a class not capable of being resolved into individuals. Bo charged, it would be evident that the persons intended to be injured were not known, and there could, of course, be no necessity for an averment to that effect.

The scheme alleged in this indictment was “to defraud divers other persons * * * by inducing those persons severally to send to him divers valuable articles, * * * and to defraud thereof the several persons who should so send the same, * * a scheme and artifice which he * * * intended to effect by opening correspondence and communication * * * with the several persons so intended to be defrauded, and by inciting those persons to open communication with him.” These expressions clearly import an intention to defraud definite individuals, with whom it was intended to open correspondence, and who, therefore, by the settled rule of pleading, should have been described by name in the indictment, or a good and true reason given for the omission.

King v. Keg., 7 Q. B. 806; Com. v. Andrews, 332 Mass. 263; People v. Arnold, 46 Mich. 268, 9 N. W. 406; Moore v. State, 65 Ind. 213; U. S. v. Hess, 124 U. S. 483, 8 Sup, Ct. 571, 31 L. Ed. 516; Durland v. U. S., 361 U. S. 306, 16 Sup. Ct. 508, 40 L. Ed. 709; State v. Woodson, 5 Humph. 55; Murphy v. State, 24 Miss. 590; White v. Reg., 13 Cox, Cr. Cas. 318; 1 Chit. Cr. Law, 210; 2 Hawk. P. C. 319; Clark, Cr. Proc. § 94; Starkie, Cr. Pl. 188.

In respect to the rule that the persons intended to be injured should be named in an indictment, a scheme to defraud by means of correspondence through the mails is not essentially different from a conspiracy to defraud at common law. Touching the latter, the rule is thus stated in 2 Whart. Cr.

Law, § 1396: “It is essential to set forth the names of the parties to be injured if they are capable of definite ascertainment, unless a good reason be given for their nonspecification. * * * Where, therefore, the persons to be injured were defined at the time of the conspiracy, and ascertainable by the pleader, their names' should be specified in the indictment. Where, however, the conspiracy was to defraud a class not capable of being at the time resolved into individuals, or to defraud the public generally, then the specification of names, is. impracticable, and hence unnecessary.” See, also, Whart. Cr.

Pl. §§ 109-118, and authorities cited in the notes. ■ In Ú. S. v. Hess, supra, the indictment, brought like the one before us, under

section 5480' of the Revised Statutes, without describing the scheme, charged the defendant with “having devised a scheme to defraud divers other persons to the grand jurors unknown,” which he “intended to effect by inciting such other persons to open communication with him,” etc.; and, in response to the contention that it was enough that the indictment should follow the language of the statute, the court said: “Tbe general, and, with few exceptions, of wbicb tbe present is not one, tbe universal, rule on this subject is that all tbe material facts and circumstances embraced in tbe definition of tbe offense must be stated, or tbe indictment will be defective. * • * The statute is directed against ‘devising or intending to devise any scheme or artifice to defraud,’ to be effected by communication through tbe post office.

As a foundation of the charge, a scheme ór artifice to defraud must be stated, which the accused either devised or intended to devise, with all such particulars as are essential to constitute the scheme or artifice, and to acquaint him with what he must meet on the trial. * * * Assuming that this averment of ‘having devised’ the scheme may be taken as sufficiently direct and positive, the absence of all particulars of the alleged scheme renders the count as defective as would be an indictment for larceny without stating the property stolen or its owner or party from whose possession it was taken.

The doctrine invoked by the solicitor general, that it is sufficient, in an indictment upon a statute, to set forth the offense in the words of the statute, does not meet the difficulty here. Undoubtedly the language of the statute may be used in the general description of an offense, but it must be accompanied with such statement of the-facts and circumstances as will inform the accused of the specific offense, coming under the general description with which he is charged.” ' Tbe opinion in Durland v. U. S. is more explicitly in point. Tbe indictment in that case was also for a violation of

section 5480 of tbe Revised Statutes, and charged that tbe defendant, by means described, devised “a scheme and artifice to defraud; that is to say, by divers false pretenses and subtle means and devices to obtain and acquire for himself, of and from divers persons to this grand inquest unknown, a large sum of money, to wit, the sum of fifty dob lars each, and to cheat and defraud each of said divers persons thereof by then and there representing,” etc.; and that “in and for executing such scheme * * * he did place and cause to be placed in a post office of the United States at Philadelphia, to be sent and delivered by the said post-office establishment, divers letters and packets, to wit, twenty letters and circulars, directed, respectively, to the said divers persons, the names and addresses of whom are to this grand inquest unknown, contrary,” .etc.

It will be observed that the “said divers persons” to whom the letters and circulars were, respectively, addressed, are shown, by force of the word “said,” to have been the persons intended to be defrauded, and to the objection that the names and addresses should have been stated the court said: “The omission to state the names of the par-, ties intended to be defrauded, and the names and addresses on the ie iters, is satisfied by the allegation, if true, that such names and addresses are to the grand jurors unknown.” Later in the opinion it was said, “as to the contents or import” of the letters, that, “if the defendant had desired further specification and identification, he should have secured it by demanding a bill of particulars”; but this, having reference only to a further identification of the letters, which for the purpose of defining the offense intended to be charged had already been sufficiently identified, does not, we think, affect the force of the passage quoted as a distinct recognition of the doctrine that when practicable the names of the parties intended to be defrauded must be stated as a part of the description of the offense, and that an averment that the names were unknown, in order to excuse the omission, must be true.

If such áverment were unnecessary, and could be rejected as surplusage, it would be immaterial whether it were true or false. The names of the persons to whom the letters were addressed would, of course, have tended to identify the letters, and for that purpose merely the names might doubtless have been supplied by a bill of particulars, but that does not affect the rule that for the purpose of describing and defining the offense itself — not merely to identify more fully another circumstance connected therewith — the names of those injured or intended to be injured, if known, must be stated.

The first count of this indictment sets out a letter, which, it is alleged, was “directed to certain persons then doing business at South Bend, in the state of Indiana, under the name of Winkler Bros.” This is not an averment that the letter was addressed to Winkler Bros. The names of the persons composing that firm are not given, and it is not alleged that the scheme to defraud included them, or that the letter was sent for the purpose of defrauding them. If, therefore, their names had been set out, the requirement that the names of parties intended to be injured be alleged would not have been satisfied.

It is not essential to the offense defined that there be a use of the mail for communication with the person intended to be injured. It is within the statute if, in aid of the scheme to defraud, the mails be used to open correspondence with the intended victim, or “any person,” or to incite “such other person [the one intended to be defrauded], or any person,” to open communication with the designer of the scheme. In the second and third counts, too, it is not alleged that the Phelps & Bigelow Wind-Mill Company and C. H.

Parker, to whom the postal cards set out in those counts were directed, were intended to be affected by the alleged scheme; and it is not shown whether the Phelps & Bigelow Wind:Mill Company was a co-partnership or a corporation. On that point, see Wharton, Cr. Pl. § 110. Other questions need not be considered. The judgment below is reversed, and the cause remanded, with directions to sustain the demurrer to each count of the indictment.