consideration of the quality of the scheme would ordinarily be within the province of the jury.

But, if the abstract legal proposition made by defendants were unquestioned, the ruling in this case would not be disturbed. A careful study of the elements of the scheme would premise the success it attained. The scheme had the appearance of legality. It was embellished with all the legal phraseology and formality so efficacious in concealing consequences and creating confidence. The language used was excellently conceived to mean one thing and create the impression that it meant something else. The contract used the standard device of referring to the application and making it a part of the contract—a part not within the custody of the owner. Important provisions of the contract, expressed in obscure language, were inconspicuously printed in small pica on the back of the signed instrument. These are favorite devices for businesses whose prosperity depends upon overreaching, and are not less useful to those who pass the hazy border into criminal fraud. The scheme primarily devised, improved by the suggestions of experience, was apparently well adapted to effecting an exchange of valueless promises for money. The indictment is not subject to the objection that the scheme it describes is not apparently adapted to the accomplishment of the crime intended to be committed.

[5] The contract recites that the application is a part of the contract. The application is not set forth in the indictment, and this fact is the basis of several assignments. It was not necessary that the contract be set forth in full or stated as completely as it was. The application did not change the legal effect of the contract. Its omission did not affect the validity of the indictment, nor was it in any way disadvantageous to defendants. While trapping the applicant into signing something which could subsequently be used in an effort to confuse him was evidently a part of the general scheme to defraud, there is no rule requiring that the description of a fraudulent scheme should mention all the auxiliary devices.

[6] In setting forth in the indictment the contract, the pleader introduced it with: "A contract of tenor in substance as follows." Many assignments are predicated on this clause, and in their support are lengthy arguments. The propositions might be condensed into this syllogism:

(1) Contradictory statements in an indictment render the indictment void.

(2) The words "tenor" and "in substance" are contradictory.

(3) The words "tenor" and "in substance" are used together in the indictment.

(4) The indictment is void.

The logic is perfect. If the premises were not erroneous, the conclusion would be unassailable. Neither etymologically, philologically, nor legally is there any necessary conflict between the words; and, as used in the indictment, the words "in substance" modify "tenor," and indicate that the contract is substantially as set forth.

Most of the attacks upon the indictment are apparently predicated upon the postulate that an indictment requires a character of English

composition entirely different from that used for any other purpose, and that, in a determination of its meaning, all the ordinary rules of interpretation are abrogated. With reference to every other instrument which comes before a court, an effort is made to ascertain the meaning intended by the writer. As to an indictment it is insisted that every possible effort should be made to divest it of meaning. A word too many avoids it; a word omitted is fatal. If a word or clause may be given a possible meaning antagonistic to another word or clause, that meaning must be given, rather than an obvious meaning which would be consistent.

Even when perversion of the language is not undertaken, perfection of expression is insisted upon. Many English words have more meanings than one, and a writer whose thoughts are entirely clear and logical must be content sometimes to have a question raised as to the meaning of the language in which he undertakes to give them expression. There is little in literature beyond the reach of the hypercritical. The Lord's Prayer and the Commandments have not escaped. One who can find 85 objections to the indictment in this case could probably suggest improvements in the Gettysburg speech. It is not quite reasonable to demand of prosecuting attorneys that they should show a talent for lucid and accurate expression, not expected of any other person. We shall decline to give aid in the maintenance of rules so manifestly in conflict with good sense, and so potently subversive of efficient administration of the law. The time of a court may be more profitably used than in the perpetuation of absurdities.

The objections which may properly be urged to the indictment are not such as may be charged to the representative of the government who drew the indictment. As heretofore stated, the indictment covers 91 printed pages. Every essential fact could probably have been stated in one-tenth of that space, except that it was conceived necessary to follow well-established forms and time-honored phraseology. It is to be regretted that prosecuting officers cannot feel safe in so drawing an indictment as to make it a simple and straightforward statement of the facts upon which the government depends for conviction. It is to be regretted, too, that the useless repetition in the counts. cannot be obviated. Each of the 85 objections to the indictment is lacking in merit. But, if it had been suggested that the charges against defendants are obscured by excessive verbiage, the proposition would be considered with sympathy, because of inherent merit, and overruled with regret, because the forms used are sustained, perhaps required, by precedent.

But, if we have little sympathy with the effort to defeat the law by verbal gymnastics, there is every inclination to see that defendants are not deprived of any substantial right by any technical rule. On this account, we have examined all the assignments, notwithstanding some of the objections to the indictment were not properly raised in the trial court, and notwithstanding counsel for the government have made exceptions to the assignments and brief that may be meritorious.

[7] On the oral submission of the cause, counsel for defendants were called upon to point out wherein any harm or disadvantage or

prejudice had resulted to defendants from the assumed defects in the indictment. Nothing more specific was indicated than that the defendants had been deprived of legal rights. If they were deprived of a legal right by any ruling, the case should be reversed. They are entitled to be tried in accordance with law. They are entitled, however, to no more than a trial by law as the law is. They cannot invoke the law as it might have been, if the tendency to permit absurd technicalities to defeat the purposes of the law had not been checked by persistent public protest and stopped by tardy, but wise, legislation. In some of the states it is still possible for an omitted letter or a misspelled word to cancel a judgment of conviction. But this court is given statutory authority to observe the dictates of common sense. Rev. St. § 1025 (Comp. St. 1916, § 1691).

Not infrequently unsound propositions have become so incorporated into the jurisprudence as developed by the courts that they have become rules of property rights. They become the basis of legal advice. The lawyer considers it safer to follow a poor opinion than a good reason. In such case, disregard of, or change in, the rules as applicable to past transactions, might bring about unjust and inexcusable results. But no one ought to be held to have a vested right in the veteran absurdities of criminal procedure; no one should be permitted to plead that he would not have violated the laws of his country, except for his confidence that foolish and illogical rulings would continue to be observed, whereby he would have acquired immunity. The trial judge properly disposed of all issues made with reference to the indictment. [8] In 479 additional assignments of error, the rulings of the trial judge in the admission of testimony and upon other matters are assailed. The excellent briefs enable us quickly to ascertain the limited number of real questions involved. The most important issue is whether the evidence is sufficient to sustain the verdict of the jury. There is very little conflict in the testimony; and, after the somewhat prolonged delay incident to the reading of the 4,000 pages of the printed. record, the issue may be passed upon without hesitation. The circumstances depended upon by the government to establish the fraudulent character of the transactions of the defendants are the terms of the contract, the character of the advertising, the conduct of agents of the company, and correspondence between the company and persons misled by the agents.

Counsel for defendants make the proposition that the scheme or device evidenced by the contract is not open to more criticism than some of the insurance contracts, and other financial transactions in which the mails are used, indulged in from day to day all over the country. This proposition could, perhaps, be acquiesced in without absolving defendants of guilt. The statement may be less an exoneration of defendants than an attack upon the officers charged with the enforcement of the law. Certainly, the contract of the Standard Home Company is not the only contract in use in which excessive and involved verbiage is used to conceal its character and to induce the careless or credulous to part with money upon the assumption that they are securing something which they do not get. It is even conceived possible that defend

ants believed that that which they were doing was not in violation of law. There is evidence to indicate that they had the law before them always, and it may be they did not realize that they had crossed the ill-defined boundary line that lies between nonpunishable overreaching and criminal fraud. Whoever approaches the line, approaches at his peril.

The contract covers 24 pages of the record. In the form in which it reached the purchaser, the body of the contract, surrounded by a colored margin and ornamented by a big red seal and the cut of a palatial home, was made up of provisions which cover 4 of the 24 pages. The balance of the contract, covering 20 pages, is printed under the title "Benefits, Provisions, and Requirements," in small type on less than three-fourths of the other side of the paper. The difficulty of reading, however, is not comparable to the difficulty of understanding. Practically every paragraph is obscure and involved. Cognate matters are considered in paragraphs remote from each other. When otherwise difficult to prevent, clearness is obviated by referring to sections "on the back hereof." Every paragraph, except one, in the main part of the contract, refers to the loan. This deals with the maturity of the contract holder's obligations. The first 7 sections of the "Benefits, Provisions, and Requirements" are with reference to the loan, as are section 17 (two paragraphs), section 18 (three paragraphs), sections 19, 20, 21, and 22. Sections 13, 14 and 15 deal with settlements which may be made "provided no loan has been made or home has been purchased." Only after reading the main contract and 18 sections of the "Benefits, Provisions, and Requirements" will the contract holder find the provisions by which it is apparently determined whether he shall have a loan. Sections 19 and 20 provide for classes, series, and issues of contracts, determined by a process within the control of the "company." When an applicant for a contract is accepted, a contract will be issued in a "series and issue" then open, and receive "the next number in the order to the contract last before issued." "It is expressly agreed that the numbers given at the home office to applications and contracts shall be held and taken to be the proper numbers of the same." The owner of the contract, "in the order of his application," "out of the funds of the particular series," is entitled to a loan "immediately upon the receipt of such funds available for his contract." The sections from which these provisions are taken are long and the language obscure,

Any person, including one accustomed to reading and considering legal instruments, would, from a reading of the contract, assume that the business of the company was loaning money, and that the purpose of the purchaser of the contract in acquiring the contract was obtaining a loan. All the provisions with reference to cash settlements and certificates of payment, upon any except a most careful reading, would appear to be effective only when the purchaser shall have exercised an option not to take the loan. Repeated and careful readings of the contract will leave in the mind of a capable lawyer doubts as to its meaning in a number of respects. The language of the contract is well adapted to mislead persons not accustomed to considering legal in

struments, and persons not familiar with business matters into assuming that they had, by purchase of the contract, acquired an opportunity of obtaining a home by paying monthly installments. Except for the misleading character of the contract, it would probably have been impossible for the company to have secured any degree of success. The business involves the idea of the contract holders' paying in money, a portion of which is to be put into the fund from which a small per cent. of them might borrow. The first payment of $6 is compensation to the agent for misleading them. The next three payments of $6 each were appropriated by the persons who devised and carried out the scheme. Out of each $6 thereafter paid, some of the persons who paid it in are permitted to borrow $4.75, under a scheme leaving it entirely within the control of the managers of the concern as to who the borrowers should be.

The experience of the company indicates that a large per cent. of purchasers, when they first see the contract, realize the improbability of securing a loan or getting any returns from their investment, and simply lose the first $6 paid in. Another large per cent. of the victims do not pay beyond the second or third installment, and do not reach the installment from which loans are made. Another considerable percentage of the contract buyers pay up to the time when they become "eligible" for a loan, when, realizing the difference between eligibility for a loan and securing the loan, they sacrifice all or a part of what they have paid. There is no probability that any person would have purchased the contract as an investment. The minimum maturity value was possible only by giving to some a part of that which others lost. The time of the payment was indefinite, the security was inadequate, and the amount payable contingent. If the contract holder considered the matter from the standpoint of securing a future cash settlement the best that he could hope for was to receive, after having made 12 payments, a little more than half of such part of the amount paid in by him as was permitted to reach. the loan and reserve fund. Upon the payment of $78 by him, which would be the initial payment and 12 monthly installments, he would receive 50 per cent. of the 9 amounts, of $4.75 each, applied to the loan and reserve fund from the installments after the third, and he would be permitted to receive 32 per cent. interest on the average time of the payments. His total return on an investment of $78 would be $27.70. If he were induced to keep his money in the enterprise for as much as two years, his losses would be only the initial payment, the first three installments, $1.25 out of each subsequent installment, 25 per cent. of what was left, and the difference between 32 per cent. interest and the current rate.

In another connection some of the features of the contract suggesting fraud were mentioned. Other provisions, which could have been, and apparently were, improperly used, include one precluding inquiry as to whether a proper number had been given the contract; another, permitting temporary loans and other diversions from the funds pertaining to an issue; another, retaining control of transfers; another, giving the company control of the numbering of the contracts by authorizing it to determine the number to be placed in an issue,