KARCHMER v. UNITED STATES, 61 F.2d 623

EVANS, Circuit Judge. Upon the single issue decisive of this appeal, little need be, or can be, said. Our only inquiry is into the sufficiency of the evidence to support the conviction. A thorough study of the entire record fails to reveal any substantial evidence which, standing by itself or read in connection with other testimony, points to appellant’s guilt rather than to his innocence. In other words, all the evidence is entirely» consistent with appellant’s asserted innocence. He was charged with a scheme to defraud and the use of the mails in furtherance thereof.

It is clear that the mails were used by him, but W'e are not satisfied that there existed a scheme to defraud. It seems to us that the evidence pointed to the existence of a legitimate scheme rather than one to defraud. At least, the evidence was, to put it conservatively, not less consistent with the existence of such a legitimate enterprise than with a scheme to defraud. We are not unmindful of the rule which makes the jury the sole judge of facts over which there is a conflict. We are not intending to usurp any of the jury's prerogatives.

Had the record presented a ease where conflicting inferences arose, or where the full significance of facts necessitated measurement and weighing by a jury, we would not' disturb the verdict. But the verdict, as we view it, rests upon speculation and conjecture. Such being the fact, the ease should not have been submitted to a jury. A verdict which finds its only support in conjecture and speculation cannot stand. The judgment is reversed, and the cause remanded for further proceedings.