SAVAGE v. UNITED STATES, 270 F. 14

MUNGER, District Judge. The plaintiff in error (hereafter called defendant was convicted of a violation of

section 215 of the Penal Code (Comp. St. § 10385). The indictment contained 15 counts. Four different schemes were alleged, with a charge in each count of the mailing of a letter or other writing in the attempted execution of the scheme.

In each count it was charged that the defendant devised a scheme to defraud by planning to incorporate a company under the laws of Colorado, adopting as its name the firm name of an existing unincorporated partnership or association then doing business, and in operation, buying and selling merchandise, of which latter company defendant would not be a member and in which he would have no interest, and further planning to have stationery and letter heads printed bearing the name of the unincorporated company.

Some of the counts aver that the defendant also planned to ascertain from whom the unincorporated association purchased goods, and then through letters, telegrams, and other means of communication 1o receive merchandise not intended for him, and for which he would not pay but would convert to his own use. Other counts charged a plan to obtain goods without paying for them, without averring that the persons to be defrauded had previously sold goods to the unincorporated company.

Other counts charged plans to have the mail intended for the unincorporated company diverted to his company, and thereby to ascertain to whom the unincorporated company had made shipments of goods, and then to obtain control of such merchandise and to obtain payment for it himself ; the remaining counts charged a plan to obtain possession of checks and negotiable instruments belonging to the unincorporated company, and then to convert them and their proceeds to his own use. The defendant was found guilty under each count of the indictment, and a single sentence was imposed.

The defendant contends that it was error to overrule his motion to quash, and his demurrer to, the indictment. No exception was taken to the ruling of the court, but independently of this the sentence imposed did not exceed that which could have been rendered upon conviction under any count of the indictment, and therefore there would,, be no reversible error, if one of the 15 counts stated an offense. Claasen v. United States, 142 U. S. 140, 146, 12 Sup. Ct. 169, 35 L. Ed. 966; Evans v. United States, 153 U. S. 608, 609, 14 Sup. Ct. 939, 38 L. Ed. 839; Abrams v. United States, 250 U. S. 616, 619, 40 Sup.

Ct. 17, 63 R. Ed. 1173; Pierce v. United States, 252 U. S. 239, 40 Sup. Ct. 205, 64 L. Ed. 542; Doe v. United States, 253 Fed. 903, 904, 166 C. C. A. 3; United States v. Lair, 195 Fed. 47, 50, 115 C. C. A. 49; Haynes v. United States, 101 Fed. 817, 819, 42 C. C. A. 34. It is said that no scheme to defraud was stated, because it was not alleged that the unincorporated partnership or association whose name the defendant would adopt as a corporate name for his incorporation, was a duly organized partnership or association. In support of this contention is cited

section 4778 of the Revised Statutes of Colorado (1908), which provides that such associations shall file with a county officer an affidavit setting forth the full names and addresses of all persons so represented, and that in default of such filing the association shall not be permitted to sue for the collection of debts, and the person in default shall be guilty of a misdemeanor.

The penalties thus imposed are limited, and do not expressly deprive the associations of the right to transact business, and as interpreted by the Supreme Court of Colorado, the statute is to be strictly construed and does not embrace any penalty except those provided by the terms of the act. YVallbrecht v. Blush, 43 Colo. 329, 332, 95 Pac. 927.

Moreover the substance of the scheme charged was not the mere use of a corporate name similar to the name of an existing association, but to use it so as to have the credit and reputation of the other company in order to obtain goods not intended, lor defendant, and for which he would not pay, and the failure to allege that the unincorporated partnership or association, then doing business and in actual operation, was duty organized, did not prejudice the defendant, and make the indictment fatally defective, in view of the provisions of

section 1025, Rev. Stat. (section 1691, U. S. Comp. Stat.). See McClendon v. United States, 229 Red. 523, 525, 143 C. C. A. 591. The particulars of the scheme are matters of substance, and must be set forth with sufficient certainty as to its existence and character that the indictment will fairly acquaint the defendant with the scheme charged against him; but the gist of the offense is the mailing of the letter, writing, or

article in pursuance of the scheme, and the scheme itself need not be pleaded with all the certainty as to time, place, and circumstance that is required in charging the gist of the offense, the mailing of the matter in execution or attempted execution of the scheme. Colburn v. United States, 223 Fed. 590, 592, 139 C. C. A. 136; McClendon v. United States, 229 Fed. 523, 525, 143 C. C. A. 591; Gardner v. United States, 230 Fed. 575, 578, 144 C. C. A. 629; MacKnight v. United States (C. C. A.) 263 Fed. 832, 837.

It is urged that some counts of the indictment do not state an offense, and no offense under them was proved, because the letters set out in the indictment and given in evidence bore a heading- which read “The Rocky Mountain Purchasing Association ,(Inc.), 311 Ideal Building, Denver, Colorado,” and that the words “the,” the abbreviation “(Inc.)” and the address “311 Ideal Building” showed no intent to defraud as it clearly indicated that the defendant’s company, and not the unincorporated company, was transacting the business.

But the letters are signed by the same name as that of the unincorporated association, and the contents of tire letters are such as might readily lead tire addressees to believe they were dealing with the unincorporated association. It is not necessary to allege or to prove that the letters mailed in pursuance of the scheme to defraud under this

section of fhe Penal Code are calculated to be effective in carrying out tire scheme. Durland v. United States, 161 U. S. 306, 315, 16 Sup. Ct. 508, 40 L. Ed. 709; Demon v. United States, 164 Fed. 953, 957, 90 C. C. A. 617. There are 4 counts, numbered 11-, 12, 13, and 15, which set out writings in which appear only the name “The Rocky Mountain Purchasing Association,” and count 14 alleges a writing setting out the name “Rocky Mountain Pur. Ass’n.” We see no reason for holding the indictment invalid, because of any of the objections urged.

It is assigned that the court erred in refusing the defendant’s motion for a bill of particulars, but such a motion is addressed to the discretion of the court and ordinarily is not reviewable (Dunlop v. United States, 165 U. S. 486, 491, 17 Sup. Ct. 375, 41 L. Ed, 799; Knauer v. United States, 237 Fed. 8, 13, 150 C. C. A. 210; Horowitz v. United States [C. C. A.] 262 Fed. 48, 49); and no such motion is found in the record. Complaint is made because the case was submitted to the jury.

At the dose of the evidence the defendant asked for opportunity to present a motion for a directed verdict, and the court answered that it would be overruled, but gave leave to put it in any form desired later on. No exception was taken to the ruling of the court, and no motion appears to have been filed or presented. Notwithstanding this failure to accept, the court may notice a claim that the evidence is insufficient (Doe v. United States, 253 Fed. 903, 915, 166 C. C.

A. 3), and the record has been examined to see whether there is substantial evidence in support of any count of the indictment, for the rule is that a judgment of conviction will not be reversed for insufficiency of the evidence, if it is sufficient to support one of several counts in the indictment and the penalty imposed is not in excess of that which could be imposed under that count. Blackstock v. United States (C. C. A.) 261 Fed. 150, 152; Bold v. United States (C. C. A.) 265 Fed. 581, 582; Schoborg v. United States (C. C. A.) 264 Fed. 1, 10; Wessels v. United States (C. C. A.) 262 Fed. 389, 391; Baldwin v.

United States, 238 Fed. 793, 795, 151 C. C. A. 643; Harrington v. United States (C. C. A.) 267 Fed. 97, 103. It is not very seriously contended that the defendant did not cause the letters and writings to be mailed as charged in the indictment, but the claim is that no scheme to defraud was proved. No extensive review of the evidence is practicable, but there was evidence relating to the first 5 counts tending to show that the defendant had been the active manager and apparently the only person interested in a company at Denver called the Northwestern Supply Company.

This company dealt in electrical and automobile supplies. It opened correspondence with the Miniature Incandescent Damp Corporation of New Jersey, seeking to purchase automobile lamps made by the latter company. The New Jersey company refused to quote prices, and referred the inquirer and the inquiry to the Rocky Mountain Purchasing Association of Denver, with whom it had a contract for the exclusive sale of its goods in that territory. The manager of the Rocky Mountain Purchasing Association telephoned to the Northwestern Supply Company, and gave prices at which the lamps could be purchased.

About a week afterwards the defendant had prepared and filed at Denver the articles of incorporation of a company also called the Rocky Mountain Purchasing Association. Three, days later this corporation sent a telegram to the New Jersey company, asking how soon it could ship several thousand lamps. The telegram was signed by the name of Rocky Mountain Purchasing Association, and directed that all mail and telegrams to the Denver office should be sent to 311 Ideal Building, which was not the address of the company having the contract with the New Jersey company.

This was soon followed, within less than three weeks, by three other telegrams ordering 12,000 lamps, each signed in the same way. This merchandise was shipped, and none of it was ever paid for. A large amount of correspondence and testimony was offered, which afforded a proper basis for the jury to find that the defendant had formed a plan to use the name of the other company at Denver, and thereby to deceive and defraud the seller of these goods, and to acquire them without intending to pay for them.

There was ample evidence to sustain the jury’s verdict in support of some, if not of all, of the other schemes alleged. It is particularly objected that it was not shown that the plan ■contemplated any gain to be derived by the defendant personally, as the dealings were all in the corporate name; but it was shown that of the three incorporators, two had no interest then or afterwards in the company, and that no one but the defendant ever appeared to have any interest in it.

He was the active and sole manager, and the employes never knew of any one else in connection with the business, and from these and other facts the jury were warranted in believing the defendant was the designed beneficiary of the transactions. There are two assignments of error relating to rulings upon admission of evidence. The first assigns error in the admission in evidence of portions of the testimony of 7 different witnesses relating to different subjects. The second alleges error in admitting in evidence ■of 100 different exhibits.

This is a violation of rule 11 of the Court of Appeals Rules (ISO Fed. xxvii, 79 C. C. A. xxvii), which requires that each error shall be set out separately and particularly. Davidson S. S. Co. v. United States, 142 Fed. 315, 318, 73 C. C. A. 425; Empire State Cattle Co. v. Atchison, T. & S. F. Ry. Co., 147 Fed. 457, 461, 77 C. C. A. 601; Smith v. Hopkins, 120 Fed. 921, 923, 57 C. C. A. 193. But the assignments have been considered in detail. Defendant’s counsel admit that none of the first group of rulings may be sufficient to require a new trial, and we think those that are’ argued are plainly without merit.

It is said that the court allowed witness Blunt to testify about a contract without placing it in evidence; but no such obj ection was made on the trial as to. Exhibit 10, and no exception was taken to the court’s ruling on the other exhibits. The objection to witness Mandel’s testimony regarding arrangements made by defendant’s incorporation for receiving mail are not founded upon any assignment ■of error.

A further objection to her testimony is based upon the objection that it was concerning an exhibit not yet in evidence; but the exhibit was offered and received in evidence after a few more ques-. tions and before her cross-examination.

While the other assignment of error challenges the rulings of the court in admitting in evidence of 100 separate exhibits, the defendant’s brief limits the challenge to the admission of 75 of them. .Some of the objections are founded upon the untenable theory that copies of writings, where the originals were shown to have been in the possession of defendant or of the companies controlled by him, could no't be given in evidence until the defendant had been notified to produce the originals.

Another objection is the lack of proof to show that the defendant caused the mailing of a sight draft set forth in the thirteenth ■count. It was shown that defendant’s .stenographer by the defendant’s direction signed this draft as assistant treasurer of the defendant’s corporation, and it was deposited by some one for the corporation in the Ideal State Bank at Denver, where the corporation kept an account.

It was sent by the bank through the mails to another bank in Colorado for presentation to the drawee, a customer who had purchased goods from the rival company, was paid, and the proceeds were transmitted to the Ideal State Batik, and the bank deposited the amount in the account of the defendant’s corporation. There was other evidence showing a similar general method of doing business by the use of sight drafts deposited by the defendant or his company to be sent through the mails for collection.

While it was not shown that defendant himself intrusted this draft to the mails, it was done by the bank at his instance. As was said in a similar case (Spear v. United States, 246 Fed. 250, 251, 158 C. C. A. 410, 411): “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, although 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 pities.

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 T.

Kenofskey, supra.” The rulings of the court as to each of the other exhibits have been carefully considered, and no serious error lias been found affecting the substantial rights of the defendant, or which requires a reversal of the judgment, in view of the provision of

section 269 of the Judi - cial Code (Comp. St. § 1246). Complaint is made of a portion of the instructions expressing the court’s opinion as to the guilt of the defendant founded upon a general exception to “the remarks of the court concerning the guilt or innocence of the defendant.” The court said that, as to iour transactions which were named and described, there could not be any doubt that a fraud was perpetrated, but left it to the jury to find who had perpetrated the frauds.

The court further said that it was of the opinion that the defendant was guilty on all counts but 4 and refused to express an opinion as to the defendant’s guill-as to those 4. The court stated repeatedly that this was a mere expression of its opinion, and that the jury were not bound by it, and that it was the jury’s duty to follow its own judgment, and that, if the jury were-of a contrary opinion, it was its duty to disregard the court’s opinion. In the courts of the United States the judge may state to the jury his opinion upon the evidence, provided they are left free to determine the facts. Allis v.

United States, 155 U. S. 117, 123, 15 Sup. Ct. 36, 39 L. Ed. 91; Horning v. District of Columbia0 (decided Nov. 22, 1920), 254 U. S. 135, 41 Sup. Ct. 53, 65 L. Ed.-; Aerheart v. St. Louis, 1. M. & S. Ry. Co., 99 Fed. 907, 909, 40 C. C. A. 171; Smith v. United States, 157 Fed. 721, 732, 85 C. C. A. 353; Keller v. United States, 168 Fed. 697, 698, 94 C. C. A. 368.

Other portions of the charge are criticized, but the criticisms cannot be considered, because there was only a general exception to the charge, other than has been stated, and error cannot be predicated upon such a general exception, where any part of the charge was correct. Block v. Darling, 140 U. S. 234, 238, 11 Sup. Ct. 832, 35 L. Ed. 476; McClendon v. United States, 229 Fed. 523, 527, 143 C. C. A. 591; Tucker v. United States, 224 Fed. 833, 841, 140 C. C. A. 279; Donaldson v. United States, 208 Fed. 4, 7, 125 C. C. A. 316. The judgment will be affirmed.