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Page Snyder Co., Paramount Hosiery Windrush, The (D. C.).

833 1 Drying Co. v. (D. C.)......... 192 Wing v. McCallum (D. C.).. Harding Land Co. v. Hart (C. C. A.) 897 | Wing v. Sedgwick (D. C.)....

199 a Pac. R. Co., Equitable Trust Co. Wolf v. National Parlor Suit Co. (D. C.). 470 w York v. (D. C.)........:: 485 Woman's Shop, In re (D. C.) .........

888 farvey & S. R. Co., Hall v. (C. C. A.) 104 Wong Chung v. United States (C. C. A.). 410 Chex Hoy Quong v. (C. C. A.)...: 749 W. R. Grace & Co., Elvers v. (C. C. A.).... 705 Chin Ah Yoke v. (C. C. A.)........ 940 W. & C. T. Jones S. S. Co. v. Barneslok Nuey Tau v. (C. C. A.)....... 7421 Ames Co. (C. C. A.)................. 116 Quan You v. (C. C. A.)......... 746 2. Tom Yuen (C. C. A.) ......... 739 Yarmouth, The (D. C.)....

.. 317 Do, Friede v. (D. C.). .............

272 Yates, Frank F. Smith Metal Window 2. Salter v. (O. C. A.)............ 126 Hardware Co. v. (C. C. A.)............ 793

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ARGUED AND DETERMINED

IN THE

UNITED STATES CIRCUIT COURTS OF APPEALS

AND THE DISTRICT COURTS

PREEMAN et al. v. UNITED STATES.
(Circuit Court of Appeals, Seventh Circuit. June 28, 1917.)

Nos. 2224-2226, 2232, 2233, 2237, 2261, 2346, 2347. 1. Post OFFICE Om 48(4)—MISUSE OF MAILS-INDICTMENT-SUFFICIENCY.

An indictment with counts under Criminal Code, $ 37, Act March 4, 1909, c. 321, 35 Stat. 1096 (Comp. St. 1916, § 10201), charging a conspiracy to violate section 215 (Comp. St. 1916, § 10,385) with reference to using the mails in the execution of a scheme or artifice to defraud and other counts charging violation of section 215, setting forth generally the scheme to defraud, was not bad for failure to set out the contract with the victims or to set out that such contract was entered into, such matters being merely evidence to show the manner in which the scheme would be made

effective. 2. INDICTMENT AND INFORMATION OM 65-MISUSE OF MAILS-SUFFICIENCY.

Such indictinent was not bad for failure to state that the collection agency through which defendants realized on their scheme was a corporation, etc., or to show the relation of defendants to the agency; such

matters being matters of evidence. 3. Post OFFICE Om35-MISUSE OF MAILS-INDICTMENT-SUFFICIENCY.

In a prosecution under Criminal Code, $ 215, letters set out in the indictment advising of the receipt of a list of claims by the collection agency through which defendants operated and of the intended call of a special agent to close up the contract through which defendants realized on the scheme showed on their face that they had some power or instru

mentality in the execution of the scheme to defraud. 4. POST OFFICE 35MMISUSE OF MAILS-LETTERS TO OR FROM OTHER VICTIM,

In a prosecution under Criminal Code, 8 215, for using the mails in the execution of a scheme to defraud, the letter which is mailed need not be

one to or from the intended victim of the fraud. 5. POST OFFICE 35—MISUSE OF MAILS-LETTERS-KIND.

The scheme being one for obtaining money, the use of the mails for the purpose of assisting in retaining the money or to convey to the victim assurances calculated to lull him into inaction is within Criminal Code, s 215, condemning the depositing in or taking from the mails any letter,

etc., for the purpose of executing any scheme to defraud. 6. POST OFFICE 48(1)-MISUSE OF MAILS-INDICTMENT-SUFFICIENCY.

An allegation that the letters therein set out were mailed "for the purpose of executing the said scheme and artifice to defraud and for the purpose of attempting so to do," the letters themselves indicating that they had such tendency, sutliciently alleged that the letters were mailed for the purpose of executing the scheme.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

244 F.-1

7. CONSPIRACY C43(9)—INDICTMENT-SUFFICIENCY.

Counts charging "that defendants * * * wrongfully, etc., conspired, etc., together * * * for the purpose of executing the said scheme and artifice to defraud " and attempting to do so, to place and cause to be placed letters in the post office,” sufficiently charged a conspiracy to use the mails in the execution of the alleged scheme to defraud and showed that the letters and other things therein stated as overt acts had power

to effect the object of the conspiracy. 8. CRIMINAL LAW Cm 444-EVIDENCE-ACCOUNT BOOKS-IDENTIFICATION

SUFFICIENCY.

In a prosecution under Crim. Code, $$ 37, 215, charging that defendants through collection agencies used the mails in the execution of a scheme to defraud by securing in advance of collection "realization charges," a book in which were entered such charges received by the manager of the Chicago office and admitted in the light of an admission or declaration of the defendants was sufliciently identified if shown to have been kept

with the knowledge and under the general directions of such manager. 9. Post OFFICE 19_USE OF MAILS-EVIDENCE-MOTIVE AND INTENT.

Where the fraudulent scheme had been shown, it was competent to prove the extent to which the charges were solicited and secured as bearing on the motive and intent, although in many cases it did not appear whether the fraudulent representations were made to secure them; the scheme not being concocted with reference to any definitely in

tended victims. 10. CRIMINAL LAW Cw1169(1)-REVIEW-ADMISSION OF EVIDENCE-HARMLESS ERROR.

The essential elements to be shown were the fraudulent scheme and the use of the mails in its execution and admitting in evidence an account book showing the receipt of $130,000 realization charges was without prejudice; it not being necessary to show the extent of the success of

the scheme. 11. CRIMINAL LAW CW447-PAROL EVIDENCE RULE-APPLICABILITY.

In such prosecution the rule against varying written contracts by parol was inapplicable, the contract with the victims being merely one of a series of evidentiary facts bearing upon the ultimate question whether a scheme or artifice to defraud through the mails was devised

or intended to be devised. 12. Post OFFICE Cow 19-WRONG FUL USE OF MAILS-EVIDENCE--SUFFICIENCY.

Evidence held insutlicient to show that the warnings given agents against making the false representations charged were made in good

faith and with intent that they should be acted upon. . 13. PosT OFFICE 35 WRONGFUL USE OF MAILS--EVIDENCE-SUFFICIENCY.

The fact that after defendants received advance payments for the collection of claims which they knew to be worthless they attempted to

make collections would be no excuse. 14. Post OFFICE 35-WRONGFUL USE OF MAILS--EVIDENCE-SUFFICIENCY.

That the contract with the victim had three years in which to run did not make the defendants immune from prosecution for the period fixed

in the contracts. 15. PosT OFFICE 35-WRONGFUL USE OF MAILS--EVIDENCE-SUFFICIENCY.

In a prosecution for using the mails in furtherance of a scheme to defraud in violation of Crim. Code, $ 215, it is not necessary that nothing

is to be given in return for the money. 16. POST OFFICE 35-WRONGFUL USE OF MAILS-EVIDENCE-SUFFICIENCY.

In a prosecution under Crim. Code, $ 215, it is not essential to prove that the scheme contemplated a use of the mails; it being sufficient to prove that the mails were in fact used in the execution of the scheme.

em For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 17. POST OFFICE 35-WBONGFUL USE OF MAILS—EVIDENCE-SUFFICIENCY.

Where the execution of the scheme to defraud would have been utterly impossible without the use of the mails, all who participated in the scheme would be guilty, although they did not actually deposit or take

from the mails any letters. 18. POST OFFICE 49-INTENT TO USE MAILS-EVIDENCE-SUFFICIENCY.

Evidence that the conspiracy to defraud was to be executed, and that the use of the mails was indispensable to its execution, sufliciently showed

the intent to use the mails as a part of the conspiracy. 19. Post OFFICE 49—INTENT AND Good FaiTh-EVIDENCE,

Evidence that the bankrupt debtors of the victims had been discharged, throwing light on the collectibility of the accounts, was competent as throwing light on the intent and good faith of defendants in representing

that they could and would collect the claims. 20. CRIMINAL LAW w 200(6)—DOUBLE CONVICTION-IDENTITY OF SUBJECTMATTER.

In a prosecution under Crim. Code, $$ 37, 215, where the conspiracy counts set forth as overt acts the mailing of letters not set out in counts under section 215, the contention that a conviction on the conspiracy counts, as well as on the others is a double conviction was untenable.

In Error to the District' Court of the United States for the Eastern Division of the Northern District of Illinois.

Abram H. Preeman and others were convicted under an indictment charging under Criminal Code, § 37, a conspiracy to violate section 215 and a violation of section 215, and bring error. Judgments affirmed.

An indictment of 35 counts was returned against plaintiffs in error (hereinafter called defendants). Demurrers were overruled, and after a long trial a general verdict of guilty was found against all. Motions for new trial and in arrest being denied, judgments were entered, and the defendants sentenced. Each prosecutes a writ of error; the errors assigned, and the transcript, briefs, and arguments presented, being by stipulation applicable to all the defendants.

Counts 25, 26, and 35 charge defendants under section 37, U. S. Criminal Code, with conspiring to violate section 215 of that Code; all the other counts charging in varying language a violation of said section 215. The general purport of the facts appearing from the very voluminous transcript will be set forth as briefly as may be.

In the early 8O's a concern known as the Barr & Widen “Commercial” Agency, composed of one Barr and one Widen, established a collection and credit reporting business or agency at St. Louis, Mo., for making local collections for and credit reports on merchants and others of that city. The concern did considerable business and enjoyed a good reputation. In about 1900 they began to do business outside of St. Louis; the solicitation and transaction of the collection business outside of St. Louis being thenceforth carried on under the name of Barr & Widen “Mercantile" Agency. In 1904. Barr died. Shortly before his death defendant Wendler became associated with the concern as general manager of the “Mercantile," Widen attending to the affairs of the "Commercial,” which under its old name continued to carry on the local business. In 1909 Wendler became a partner of Widen, but the names of the concern remained unchanged. Widen died in November, 1912. From time to time there was developed a plan for soliciting business from outside concorns all over the United States, through agents instructed and trained to solicit contracts from prospective clients, and to obtain from them payment in advance of sums called “realization charges."

The plan of procedure during the period of time particularly here involved, for interesting the outside clients in the proposition, as appears from testi

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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