SPEAR v. UNITED STATES; PORTER v. UNITED STATES, 246 F. 250

HOOK, Circuit Judge. Spear and Porter were again convicted of fraudulent use of the mails and conspiracy (Penal Code, §§ 215, 37), after having been awarded a new trial (Spear v. United States, 143 C. C. A. 67, 228 Fed. 485), and have again prosecuted writs of error. A description of the fraudulent scheme will be found in our former opinion and need not be repeated here. No error was committed in denying Spear a continuance. The granting or denial of a continuance is a matter of discretion, and is not subject to review in an appellate court unless it be clearly shown that the discretion was abused.

There was no such abuse by the trial court. Complaint is made of the admission in evidence of letters of a bank transmitting by mail certain drafts and checks to other banks for collection and remittance. The drafts and checks had been received from the victims of the fraudulent scheme by those actively engaged in conducting it. The latter turned them over to Spear, and he delivered them to a local bank for collection. The bank did not cash them, but accepted them for collection. Part of the scheme was to keep the victims quiescent until reports of payment were received.

Collection of the drafts and checks was essential to the full consummation of the fraud, and the evidence of Spear’s guilty assistance was sufficient. When he intrusted them to the bank he made it his agent, all hough it was innocent of the fraud. United States v. Kenofskey, 243 U. S. 440, 37 Sup. Ct. 438, 61 L. Ed. 836. The drafts and checks were drawn on banks in distant cities.

The custom among banks, almost invariable, is to forward such collection items by mail with letters of transmittal, and Spear must have known the local bank would follow the ordinary course in the absence of instructions to the contrary. When the bank deposited the letters of transmittal in the mails, Spear, in legal effect, caused them to do so. United States v. Kenofskey, supra. Complaint is also made that the trial court in charging the jury commented upon the absence of witnesses to identify the men who, in a short period of time, gave between $30,000 and $40,000 of such drafts and checks to Spear.

We see no objection to the remarks of the court. They were addressed largely to the efforts of Spear, who did not testify, to show by evidence, that was unsatisfactory in both source and probative value, that his connection with the drafts and checks was casual, innocent, and in an ordinary way. A state of facts tending to incriminate him had been shown, and when he undertook to explain it his neglect to produce existing satisfactory proof peculiarly within his power was a proper subject of comment by the court if none was made on his own failure to testify. Graves v. United States, 150 U. S. 118, 14 Sup.

Ct. 40, 37 L. Ed. 1021. The case of Perara v. United States, 136 C. C. A. 623, 221 Fed. 213, is not in point. There the evidence that was not produced by the accused was expert testimony as to the authorship of certain handwriting. There was no presumption that the handwriting was that of tire accused, arid no incriminating state of facts with respect to it imposing upon him the burden of affirmative explanation.

Furthermore, the production of the expert testimony was equally within the power of the prosecution. -It was held that the effect of the charge was to cast upon the accused the burden of proving his innocence. The contention that the fraudulent scheme was complete when the drafts and checks were received from the victims, and that Spear could not have made himself a party to it by subsequently aiding in their collection, is answered by our former opinion and by United States v. Kenofskey, supra.

Such of the special instructions requested and denied as were in proper form and embodied correct statements of the law were sufficiently covered by the general charge. There is nothing else in the assignments of error requiring notice. The sentences are affirmed.