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11 F.(2d) 18
In Error to the District Court of the United States for the Southern District of West Virginia, at Charleston; George W. McClintic, Judge.
Ralph E. Tincher, Otto H. Beigel, D. J. Dillingham, and J. W. Smith were convicted of violating Penal Code, § 215, for fraudulent use of the mails, and they bring error.
The plaintiffs in error, hereinafter called defendants, were convicted of violating the statute against fraudulent use of the mails. Section 215 of the Penal Code (Comp. St. § 10385.) The fraud in connection with which the mails were used was a swindling scheme involving the sale of worthless oil leases. The plan followed by defendants was substantially as follows:
They would for a nominal consideration have an oil lease which they knew to be practically worthless made to one of their number as lessee. Then, having selected an in
tended victim in a section remote from the land which was the subject of the lease, another of the defendants would approach him, claiming to be the representative of a wealthy oil company anxious to purchase the lease and willing to pay a large sum of money therefor. The holder of the lease was rep resented as being ignorant of its value, and the victim was asked to aid in the purchase, ostensibly that the ignorant holder might not learn that his property was desired by the oil company. Having thus enlisted the services of the victim, the pretended representative would propose that they together defraud the company, by making the purchase themselves and reselling to the company at a large profit. A meeting would be arranged
between the victim and another of the de
fendants, who would pose as the president of the company, and would agree in its behalf to purchase the lease at an extravagant figure. The holder of the lease would then close the trade with the victim, who would awake, after he had parted with his money, to find that the affluent company, the prosperous president, the plausible representative, and the ignorant leaseholder had suddenly vanished. The record shows that this scheme, with minor variations, was worked by various of the defendants in perpetrating or attempting to perpetrate at least nine different frauds.
The lease referred to in this indictment was an oil lease on 30 acres of land in Meigs county, Ohio, executed on April 12, 1924, by one Geary to defendant Smith, for which Smith had agreed to pay $350, and the value
of which did not exceed that amount. June, 1924, Smith, in conjunction with the defendants Dillingham and Tincher and one Root, brother-in-law of Tincher, attempted to sell the lease to one E. B. Thompson, of Jackson, Ohio. Dillingham and Root represented to Thompson that they desired to purchase this lease and would not allow $50,000 stand in the way of their getting it. They urged Thompson to get in touch with Smith and help them purchase it. Thompson did get in touch with Smith, and Smith attempted to sell him a two-thirds interest in the lease for $8,000, but Thompson became suspicious and called the deal off.
Having failed on Thompson, Smith on September 10, 1924, wrote a letter to the Farmers' & Merchants' Bank of Catlettsburg, Ky., inclosing the lease, together with Dillthe lease be delivered to Dillingham upon lingham's note for $1,000, and directed that payment of the note. A few days later the defendant Tincher showed up in the office of one C. A. Croft, of Madison, W. Va., who up to that time had known none of the defendants, except Smith. Tincher asked Croft whether he knew a man by the name of Dillingham. Upon Croft replying in the negative, he stated that he was anxious to locate Dillingham; that Dillingham had a valuable oil lease, which he (Tincher) as representative of an oil company was anxious to acquire. At Tincher's suggestion Croft got in communication with Dillingham and entered into negotiations with him. Dillingham asked $7,000 for the lease. Tincher and offered Croft $1,000 to buy it for him represented that it was worth much more, at that price.
While these negotiations were pending he suggested that Croft buy the lease at $7,000, and that he and Croft sell it to the company for a large price and divide the profit. He introduced Croft to Biegel, who posed as president of the oil company, and who, after some parleying, agreed to pay $17,500. Croft then went with Dillingham to a bank in Ashland, Ky., and gave his check for $7,000, drawn on his bank in Madison, W. Va., and obtained in exchange a cashier's check for a like amount. He carried this cashier's check to the bank at Catlettsburg, where he delivered it to Dillingham and obtained the lease. Biegel approved the lease and told Croft to meet him in Huntington at the First National Bank, where the $17,500 would be paid him. Croft went to Huntington as directed, but Biegel failed to show up, and Croft saw no more of any of the de
fendants until after the prosecution was in- pear from the indictment how the use of the stituted.
The $7,000 check delivered by Croft to the bank in Ashland was sent for collection to the Federal Reserve Bank of Richmond, and by it sent through the mail to Madison, W. Va. A check for $3,000 of the amount paid by Croft was drawn in Dillingham's favor by the cashier of the Catlettsburg bank and was deposited in a bank at Charleston, W. Va., and by it sent through the mails from Charleston for collection. The Catlettsburg bank sent Smith a check for $1,000, which was deposited with a bank at Charleston, and by the bank sent through the mail from Charleston for collection.
The indictment contains four counts. The first, stripped of verbiage, charges that the defendants had devised a scheme to defraud, in that they had agreed to induce some person to purchase from Dillingham the oil lease on the land in Meigs county, Ohio, at a large price, by falsely and fraudulently representing that Tincher and Biegel would purchase said lease from said person at a price far in excess of the price paid therefor, and that, in furtherance of said scheme, they caused to be mailed from Charleston the letter of September 10th inclosing the lease and the $1,000 note. The second, third, and fourth counts repeat the allegations as to the formation of the fraudulent scheme, and charge the sending through the mails of the $7,000 check, the $3,000 check, and the $1,000 check, respectively.
The defendants were convicted of all counts of the indictment, and were fined $500 each and sentenced to terms of imprisonment aggregating 10 years for each defendant.
A. M. Belcher, of Charleston, W. Va. (Lon H. Kelly, of Charleston, W. Va., on the brief), for plaintiffs in error.
Elliott Northcott, U. S. Atty., of Huntington, W. Va. (Lawrence L. McClure, Asst. U. S. Atty., of Southington, W. Va., on the brief), for the United States.
Before WADDILL, ROSE, and PARKER, Circuit Judges.
PARKER, Circuit Judge (after stating the facts as above). [1-3] The first point urged upon us by defendants relates to the sufficiency of the indictment. As we understand their contention, it is that the counts of the indictment are defective in that they do not allege that the fraudulent scheme charged was intended to be effected by the use of the mails, and in that it does not ap
mails alleged would have been effective in furthering the fraud. As to the first proposition, the answer is that this was not a prosecution for conspiracy under section 37. of the Penal Code (Comp. St. § 10201) to commit an offense under section 215 (Comp. St. § 10385). It is true that, in a prosecution of that character, it is necessary to allege that for the purpose of executing the scheme charged the defendants had conspired that the mails should be used.
But this was a prosecution for violation of section 215 itself, and in such case it is well settled that it is not necessary to allege that the fraudulent scheme was intended to be effected by use of the mails. Robins v. U. S. (C. C. A.) 262 F. 126; Smith v. U. S. (C. C. A.) 267 F. 665.
As to the second point, it was not necessary to allege or prove that the matter sent through the mails was calculated to be effective in carrying out the scheme. Savage v. U. S. (C. C. A.) 270 F. 14. Each of the counts of the indictment properly charges the defendants with having devised a scheme to defraud, describing the scheme in detail, and with using the mails in furtherance of the scheme, describing specifically how the mails were used. This was sufficient. U. S. v. Young, 34 S. Ct. 303, 232 U. S. 155, 58 L. Ed. 548; Crane v. U. S., 259 F. 480, 170 C. C. A. 456; Kaufmann v. U. S. (C. C. A.) 282 F. 776.
[4,5] It is next urged that there was reversible error in admitting evidence as to participation by defendants in fraudulent transactions not connected with the fraudulent scheme charged in the indictment. Defendants contend that this evidence was inadmissible, because they say that there was no prima facie showing of the fraudulent scheme described in the indictment. But in this we cannot agree with the defendants On the contrary, we think that the evidence adduced to establish the fraudulent scheme alleged was plenary, and that the evidence as to similar fraudulent transactions at or about the same time was properly admitted as bearing upon the question of intent. Defendants stoutly contended that the use of the mails was in good faith, and not in furtherance of any fraudulent scheme. The fact that the scheme set forth in the indictment was merely one of a number of fraudulent transactions, in which they were engaged at or about the same time, strongly tended to negative this contention. It is well settled that, where fraudulent intent is one of the material allegations in the indictment, evi
11 F.(2d) 18
dence of other and similar ventures by the accused at or about the same time is properly admissible as bearing upon the question of intent. Samuels v. U. S., 232 F. 536, 146 C. C. A. 494, Ann. Cas. 1917A, 711; Shea v. U. S., 251 F. 440, 163 C. C. A. 67; Colt v. U. S., 190 F. 305, 111 C. C. A. 205; Jones v. U. S., 179 F. 584, 103 C. C. A. 142. [6, 7] The point is made that the sentences imposed upon the defendants constituted cruel and unusual punishment and amounted to an abuse of discretion on the part of the trial judge. No authority is cited to sustain this position, and it is obviously unsound. The sentences imposed were within the limit prescribed by the statute; and it is well settled that in such case the action of the trial judge will not be reviewed on appeal, except in case of gross or palpable abuse, which does not exist here. The judge who tries the case and hears the testimony is the best, as he is the sole judge of the merits, and if he acts within the boundaries prescribed by law his decision is final and unreviewable in an appellate court. 17 C. J. 254; State v. Woodlief, 90 S. E. 137, 172 N. C. 885.  The remaining exceptions are addressed to the action of the court in refusing to grant separate trials to the defendants and in refusing to set aside the verdict of the jury and grant a new trial. That these were both matters within the discretion of the trial court is so well settled as to require neither discussion nor citation of authority.
[9-12] The greater part of the argument of defendants was addressed to the proposition that the testimony adduced on the hearing was not sufficient to support a conviction under the indictment. This point was not saved by a motion to direct a verdict in the court below nor in any other manner, and the general rule is that the sufficiency of the evidence to support a verdict cannot be reviewed by writ of error, unless exception is taken before a verdict to a ruling thereon. 17 C. J. 78, and cases cited. Only in very exceptional cases will this court exercise its discretion to review the sufficiency of the evidence to sustain a conviction, where the point was not appropriately raised in the court below. Robins v. U. S. (C. C. A.) 262 F. 126. The defendants have made no such showing as to take this case out of the general rule. Nevertheless, in view of the importance of the case to the defendants, we have reviewed the evidence, and are of opinion that it was amply sufficient to justify the submission of the case to the jury on each count of the indictment. The evidence showed clearly a fraudulent scheme entered
into by the defendants, and there was evidence from which the jury could properly infer that the mailing of the letter by Smith, with the note and lease inclosed, was an act done in furtherance of the fraudulent scheme, and that the scheme was in existence prior to the mailing of the letter. In such case the mailing of the letter was in law the act of all the defendants. Farmer v. U. S., 223 F. 903, 911, 139 C. C. A. 341; Belden v. U. S. 223 F. 726, 730, 139 C. C. A. 256; Wiborg v. U. S., 16 S. Ct. 1127, 163 U. S. 632, 41 L. Ed. 289; Schwartzberg v. U. S., 241 F. 348, 154 C. C. A. 228.
 It was not necessary for the government to show that there was an intent on the part of the defendants to effect their fraudulent scheme by the use of the mails. This was necessary under section 5480, R. S., but it is not necessary in a prosecution under section 215 of the Penal Code. U. S. v. Young, 34 S. Ct. 303, 232 U. S. 155, 58 L. Ed. 548; Farmer v. U. S., 223 F. 903, 139 C. C. A. 341; Depew v. U. S., 255 F. 539, 166 C. C. A. 607. Nor was it necessary that the mails be used for communicating with the person intended to be defrauded. Ader v. U. S. (C. C. A.) 284 F. 13.  With respect to the counts charging the forwarding of the checks for collection, it appears that the mails were used by the banks with whom these checks were deposited without knowledge on their part of the fraudulent scheme; but the defendants caused the checks to be deposited in these banks with knowledge that the mails would necessarily be used in their collection, and the collection of the checks was a necessary part of the working out of the scheme. In fact, it was through the collection of these checks that the defendants collected and divided the spoils of their fraud. In such case the defendants were responsible for the use of the mail by the banks, though the banks were entirely innocent agencies. Spear v. U. S., 228 F. 485, 143 C. C. A. 251; Shea v. U. S., 251 F. 440, 163 C. C. A. 67; Savage v. U. S. (C. C. A.) 270 F. 14; U. S. v. Kenofskey, 37 S. Ct. 438, 243 U. S. 440, 61 L. Ed. 836. "Responsibility cannot be avoided by the use of an innocent agency intentionally employed to reach and use the mails in effecting a scheme to defraud." Spear v. U. S., supra.
Upon a careful review of the entire record, we are satisfied that the defendants were properly convicted and that the judgment of the court below should be affirmed. Affirmed.
In Error to the District Court of the United States for the Eastern District of South Carolina, at Columbia; Ernest F. Cochran, Judge.
Action by William C. McLeod against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.
Douglas McKay, of Columbia, S. C. (Thomas W. Davis, of Wilmington, N. C.,
on the brief), for plaintiff in error.
D. W. Robinson, of Columbia, S. C. (L. D. Jennings, of Sumter, S. C., on the brief),
for defendant in error.
time between 12 and 2 o'clock on the morning of July 3, 1922. The freight train, consisting of a locomotive and 45 cars, was traveling at a speed of around 35 miles an hour. It was making so much noise that it was heard by one of plaintiff's witnesses 250 yards away. The locomotive was equipped with an electric headlight, burning and in good condition.
Plaintiff spent the evening preceding his injury at the home of one Jim Brewer, near the crossing. He testifies that he left Brewers about midnight, in company with two of Brewer's sons, and proceeded to the home of one Agnes Weeks, who lives near the crossing, to employ her to hoe cotton for him next day. He states that, having left the home of Agnes Weeks shortly after midmight, he and the Brewer boys were walking along the public highway, and were in the act of crossing the railroad track, when they were struck by the approaching freight train, with the result that both of the Brewer boys were killed outright, and plaintiff himself was seriously injured. This was plaintiff's statement on the trial. A short while after the occurrence, however, he stated to the coroner of Sumter county, and also to his attending physician, that he and his companions had been drinking on the night of had gone to sleep on the track; that he was the occurrence, and that the three of them awakened by the train and was in a rising position, getting off, when the train struck
The track approaching the crossing was Before WADDILL, ROSE, and PARK- straight, and although there was evidence ER, Circuit Judges.
PARKER, Circuit Judge. This was an action instituted by William C. McLeod against the Atlantic Coast Line Railroad Company to recover damages for personal injuries sustained by him when struck at a railroad crossing by one of its freight trains. He recovered a verdict for $2,000 in the District Court, and this writ of error is prosecuted by the company to reverse the judgment rendered thereon. McLeod was plaintiff in the District Court, and the company was defendant, and for convenience they will be so designated in this opinion.
The injury of which plaintiff complains occurred at or near Broadway Siding, in Sumter county, S.C., where the main highway between Pinewood and Sumter crosses defendant's railroad track from Augusta, Ga., to Florence, S. C. Plaintiff and two of his companions were struck at this crossing by a north-bound freight train some
as to the presence of buildings and other obstruction which would tend to obscure the view of the track as one approached, there was no obstruction that would have shut off the view entirely of the approaching light of the engine. There was evidence on the part of the plaintiff that the crossing sig nals were not given, but no explanation offered as to why plaintiff did not hear the noise made by the approaching train. The evidence was that persons lying down on the track at or near the crossing could have been seen from the approaching train for a distance of from 300 to 500 feet, and that the train could not have been stopped in less than the train length, which was about 1,800 feet.
[1, 2] At the conclusion of the testimony defendant moved the court for a directed verdict, and we think that the motion should have been granted. Whether plaintiff's injury occurred in the manner narrated by him on the trial, or whether it occurred in the
11 F.(2d) 22
manner stated to the coroner and the physician, we think that the plaintiff has failed to make out a case of liability on the part of the defendant. If we take the plaintiff's testimony in the light most favorable to him, as we must in considering a motion for a directed verdict, it establishes negligence on the part of the company; but it also establishes gross contributory negligence on his part as the proximate cause of the inJury. If the testimony of plaintiff himself is to be believed, he stepped directly in front of an approaching train, when by the exercise of the slightest care he could have seen the danger and avoided injury.
This is not the case of a traveler in an automobile, whose attention is occupied in part with the driving of his car, and who is unable to stop instantly because of its momentum. It is the case of a pedestrian proceeding leisurely down a highway at night, with nothing to do but look and listen while approaching the crossing, who has it in his power at every moment up to his going upon the track to stop and avoid the danger, and who, nevertheless, with his eyes open and his brain clear, walks deliberately in front of a freight train of 45 cars, running at a speed of 30 miles an hour, and making so much noise as to be heard 250 yards away.
late Judge Woods in a case arising under the South Carolina crossing law, as follows:
"It is well settled that when the railroad company has done nothing to allay his sense of danger, and there are no extraordinary conditions sufficient to distract the attention of a man of ordinary prudence and self possession from the duty of taking precaution, a traveler will be held guilty of contributory negligence, as a matter of law, when the evidence shows affirmatively beyond dispute that he walked or drove his vehicle on a crossing without taking any precaution whatever to ascertain if a train was approaching." Southern Railway Co. v. Priester (4th C. C. A.) 289 F. 947; Citing Railroad Co. v. Houston, 95 U. S. 697, 24 L. Ed. 542; Dernberger v. B. & O. Ry. Co. (4th C. C. A.) 243 F. 21; U. S. Director General of Railroads v. Zanzinger (4th C. C. A.) 269 F. 552; Payne v. Blevins (C. C. A.) 280 F. 310; Bush v. B. & O. Ry. Co. (4th C. C. A.) 288 F. 845.
This rule is stated by the Supreme Court of South Carolina as follows:
"The law imposes upon every capable person the duty of observing due care for his own safety when about to cross a railroad track, which necessarily involves the exPlaintiff's testimony that as he approach- ercise of his senses. And while it is ordied the crossing he looked and listened for narily a question of fact for the jury to say the train is not sufficient to carry the case whether, under the circumstances of the to the jury. The testimony clearly shows particular case, the traveler did exercise such that, if he had looked and listened immediate- care, when the facts are undisputed and ly before going upon the track, he must susceptible of only one inference, it becomes necessarily have both seen and heard the a question of law for the court. train, and we conclude that, if he did in fact In this case plaintiff's driver did not oblook and listen when approaching the crossserve the slightest care for his own safety, ing, he must have done so some distance or that of the property in his custody, and away, and not immediately before going up- the failure to observe such a slight precauon the track, as he should have done. If tion as to look for approaching trains bewe regard the statement of plaintiff as meanfore driving upon the crossing was gross ing that he looked and listened immediately negligence. The evidence warrants no other before going upon the track, and that he did inference than that his failure to look was not see or hear the train at that time, the tes- the sole cause of the accident, or at least a timony is so repugnant to the undisputed proximate contributing cause. Therefore dephysical facts that neither the court nor the fendant's motion to direct the verdict should jury could, without stultifying themselves, have been granted." Cable Piano Co. v. concede to it any probative value whatever. Southern Ry. Co., 77 S. E. 868, 869, 94 S. Moore on Facts, par. 321. If he had used C. 143, 145; Drawdy v. Railway, 58 S. E. his senses, he could not have failed both 980, 78 S. C. 379; Griskell v. Railway, 62 to hear and to see the oncoming train. If he S. E. 205, 81 S. C. 193. omitted to use them, and walked carelessly upon the track, he was guilty of culpable negligence, and so far contributed to his injury as to deprive him of any right to complain of another. Railroad v. Houston, 95 U. S. 697, 24 L. Ed. 542.
 In passing upon the question as to the right of defendant to a directed verdict, we have considered the evidence in the light most favorable to plaintiff, and have disregarded the evidence introduced to sustain defendant's theory of the case, except in so far as The rule applicable is well stated by the it may serve to furnish a basis for liability