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11 F.(20) 18 In Error to the District Court of the of which did not exceed that amount. In United States for the Southern District of June, 1924, Smith, in conjunction with the West Virginia, at Charleston; George W. defendants Dillingham and Tincher and one McClintic, Judge.

Root, brother-in-law of Tincher, attempted Ralph E. Tincher, Otto H. Beigel, D. J. to sell the lease to one E. B. Thompson, of Dillingham, and J. W. Smith were convict- Jackson, Ohio. Dillingham and Root reped of violating Penal Code, $ 215, for fraud- resented to Thompson that they desired to ulent use of the mails, and they bring error. purchase this lease and would not allow Affirmed.

$50,000 stand in the way of their getting it. The plaintiffs in error, hereinafter called They urged Thompson to get in touch with

The plaintiffs in error, hereinafter called Smith and help them purchase it. Thompson defendants, were convicted of violating the did get in touch with Smith, and Smith atstatute against fraudulent use of the mails. tempted to sell him a two-thirds interest in Section 215 of the Penal Code (Comp. St. the lease for $8,000, but Thompson became § 10385.) The fraud in connection with

suspicious and called the deal off. which the mails were used was a swindling scheme involving the sale of worthless oil September 10, 1924, wrote a letter to the

Having failed on Thompson, Smith on leases. The plan followed by defendants Farmers' & Merchants’ Bank of Catlettsburg, was substantially as follows:

Ky., inclosing the lease, together with DillThey would for a nominal consideration have an oil lease which they knew to be prac- the lease be delivered to Dillingham upon

lingham's note for $1,000, and directed that tically worthless made to one of their number as lessee. Then, having selected an in- payment of the note. A few days later the

defendant Tincher showed up in the office of tended victim in a section remote from the

one C. A. Croft, of Madison, W. Va., who land which was the subject of the lease, another of the defendants would approach him, up to that time had known none of the de

fendants, except Smith. Tincher asked claiming to be the representative of a wealthy Croft whether he knew a man by the name of oil company anxious to purchase the lease

Dillingham. Upon Croft replying in the and willing to pay a large sum of money negative, he stated that he was anxious to therefor. The holder of the lease was rep, locate Dillingham; that Dillingham had a resented as being ignorant of its value, and valuable oil lease, which he (Tincher) as repthe victim was asked to aid in the purchase, resentative of an oil company was anxious ostensibly that the ignorant holder might not to acquire. At Tincher's suggestion Croft learn that his property was desired by the

got in communication with Dillingham and oil company. Having thus enlisted the serv.

entered into negotiations with him. Dillingices of the victim, the pretended represen- ham asked $7,000 for the lease. Tincher tative would propose that they together defraud the company, by making the purchase and offered Croft $1,000 to buy it for him

represented that it was worth much more, themselves and reselling to the company at a large profit. A meeting would be arranged at that price. between the victim and another of the de

While these negotiations were pending he fendants, who would pose as the president of suggested that Croft buy the lease at $7,the company, and would agree in its behalf 000, and that he and Croft sell it to the comto purchase the lease at an extravagant pany for a large price and divide the profit. figure. The holder of the lease would then He introduced Croft to Biegel, who posed as close the trade with the victim, who would president of the oil company, and who, after awake, after he had parted with his money, some parleying, agreed to pay $17,500. to find that the affluent company, the pros- Croft then went with Dillingham to a bank perous president, the plausible representative, in Ashland, Ky., and gave his check for $7,and the ignorant leaseholder had suddenly 000, drawn on his bank in Madison, W. Va., vanished. The record shows that this scheme, and obtained in exchange a cashier's check with minor variations, was worked by various for a like amount. He carried this cashier's of the defendants in perpetrating or attempt- check to the bank at Catlettsburg, where he ing to perpetrate at least nine different delivered it to Dillingham and obtained the frauds.

lease. Biegel approved the lease and told The lease referred to in this indictment Croft to meet him in Huntington at the was an oil lease on 30 acres of land in Meigs First National Bank, where the $17,500 county, Ohio, executed on April 12, 1924, would be paid him. Croft went to Huntingby one Geary to defendant Smith, for which ton as directed, but Biegel failed to show up, Smith had agreed to pay $350, and the value and Croft saw no more of any of the defendants until after the prosecution was in- pear from the indictment how the use of the stituted.

mails alleged would have been effective in The $7,000 check delivered by Croft to furthering the fraud. As to the first propthe bank in Ashland was sent for collection osition, the answer is that this was not a to the Federal Reserve Bank of Richmond, prosecution for conspiracy under section 37. and by it sent through the mail to Madison, of the Penal Code (Comp. St. § 10201) to W. Va. A check for $3,000 of the amount commit an offense under section 215 (Comp. paid by Croft was drawn in Dillingham's St. § 10385). It is true that, in a prosecufavor by the cashier of the Catlettsburg tion of that character, it is necessary to allege bank and was deposited in a bank at Charles- that for the purpose of executing the scheme ton, W. Va., and by it sent through the mails charged the defendants had conspired that from Charleston for collection. The Catletts- the mails should be used. burg bank sent Smith a check for $1,000, But this was a prosecution for violation which was deposited with a bank at Charles- of section 215 itself, and in such case it is ton, and by the bank sent through the mail well settled that it is not necessary to allege from Charleston for collection.

that the fraudulent scheme was intended to The indictment contains four counts. The be effected by use of the mails. Robins v. first, stripped of verbiage, charges that the U. S. (C. C. A.) 262 F. 126; Smith v. U. defendants had devised a scheme to defraud, S. (C. C. A.) 267 F. 665. in that they had agreed to induce some per- As to the second point, it was not necesson to purchase from Dillingham the oil lease sary to allege or prove that the matter sent on the land in Meigs county, Ohio, at a large through the mails was calculated to be effecprice, by falsely and fraudulently represent- tive in carrying out the scheme. Savage v. ing that Tincher and Biegel would purchase U. S. (C. C. A.) 270 F. 14. Each of the said lease from said person at a price far in counts of the indictment properly charges the exoess of the price paid therefor, and that, defendants with having devised a scheme to in furtherance of said scheme, they caused to defraud, describing the scheme in detail, be mailed from Charleston the letter of Sep- and with using the mails in furtherance of tember 10th inclosing the lease and the $1,- the scheme, describing specifically how the 000 note. The second, third, and fourth mails were used. This was sufficient. U. counts repeat the allegations as to the for- S. v. Young, 34 S. Ct. 303, 232 U. S. 155, mation of the fraudulent scheme, and charge 58 L. Ed. 548; Crane v. U. S., 259 F. 480, the sending through the mails of the $7,000 170 C. C. A. 456; Kaufmann v. U. S. (C. check, the $3,000 check, and the $1,000 C. A.) 282 F. 776. check, respectively.

[4,5] It is next urged that there was reThe defendants were convicted of all versible error in admitting evidence as to counts of the indictment, and were fined participation by defendants in fraudulent $500 each and sentenced to terms of impris- transactions not connected with the frauduonment aggregating 10 years for each de- lent scheme charged in the indictment. Defendant.

fendants contend that this evidence was inA. M. Belcher, of Charleston, W. Va. admissible, because they say that there was (Lon H. Kelly, of Charleston, W. Va., on

no prima facie showing of the fraudulent the brief), for plaintiffs in error.

scheme described in the indictment. But in Elliott Northcott, U. S. Atty., of Hunt- this we cannot agree with the defendants ington, W. Va. (Lawrence L. McClure, Asst. On the contrary, we think that the evidence U. S. Atty., of Southington, W. Va., on the adduced to establish the fraudulent scheme brief), for the United States.

alleged was plenary, and that the evidence Before WADDILL, ROSE, and PARK- about the same time was properly admitted

as to similar fraudulent transactions at or ER, Circuit Judges.

as bearing upon the question of intent. De

fendants stoutly contended that the use of PARKER, Circuit Judge (after stating the mails was in good faith, and not in furthe facts as above). [1-3] The first point therance of any fraudulent scheme. The fact urged upon us by defendants relates to the that the scheme set forth in the indictment sufficiency of the indictment. As we under- was merely one of a number of fraudulent stand their contention, it is that the counts transactions, in which they were engaged at of the indictment are defective in that they or about the same time, strongly tended to do not allege that the fraudulent scheme negative this contention. It is well settled charged was intended to be effected by the that, where fraudulent intent is one of the use of the mails, and in that it does not ap- material allegations in the indictment, evi11 F.(20) 18 dence of other and similar ventures by the into by the defendants, and there was eviaccused at or about the same time is prop- dence from which the jury could properly erly admissible as bearing upon the ques- infer that the mailing of the letter by Smith, tion of intent. Samuels v. U. S., 232 F. 536, with the note and lease inclosed, was an act 146 C. C. A. 494, Ann. Cas. 1917A, 711; done in furtherance of the fraudulent scheme, Shea v. U. S., 251 F. 440, 163 C. C. A. 67; and that the scheme was in existence prior Colt v. U. S., 190 F. 305, 111 C. C. A. 205; to the mailing of the letter. In such case Jones v. U. S., 179 F. 584, 103 C. C. A. 142. the mailing of the letter was in law the act [6,7] The point is made that the sentences of all the defendants. Farmer v. U. S., 223 imposed upon the defendants constituted F. 903, 911, 139 C. C. A. 341; Belden v. U. S. cruel and unusual punishment and amounted 223 F. 726, 730, 139 C. C. A. 256; Wiborg to an abuse of discretion on the part of the v. U. S., 16 S. Ct. 1127, 163 U. S. 632, 41 trial judge. No authority is cited to sustain L. Ed. 289; Schwartzberg v. U. S., 241 F. this position, and it is obviously unsound. 348, 154 C. C. A. 228. The sentences imposed were within the limit [13] It was not necessary for the governprescribed by the statute; and it is well set- ment to show that there was an intent on the tled that in such case the action of the trial part of the defendants to effect their fraudjudge will not be reviewed on appeal, except ulent scheme by the use of the mails. This in case of gross or palpable abuse, which was necessary under section 5480, R. S., but does not exist here. The judge who tries it is not necessary in a prosecution under the case and hears the testimony is the best, section 215 of the Penal Code. U. S. v. as he is the sole judge of the merits, and Young, 34 S. Ct. 303, 232 U. S. 155, 58 L. if he acts within the boundaries prescribed Ed. 548; Farmer v. U. S., 223 F. 903, 139 by law his decision is final and unreviewable C. C. A. 341; Depew v. U. S., 255 F. 539, in an appellate court. 17 C. J. 254; State v. 166 C. C. A. 607. Nor was it necessary that Woodlief, 90 S. E. 137, 172 N. C. 885. the mails be used for communicating with [8] The remaining exceptions are addressed the person intended to be defrauded. Ader to the action of the court in refusing to grant v. U. S. (C. C. A.) 284 F. 13. separate trials to the defendants and in re- [14] With respect to the counts charging the fusing to set aside the verdict of the jury forwarding of the checks for collection, it and grant a new trial. That these were both appears that the mails were used by the matters within the discretion of the trial banks with whom these checks were decourt is so well settled as to require neither posited without knowledge on their part of discussion nor citation of authority. the fraudulent scheme; but the defendants (9-12] The greater part of the argument of caused the checks to be deposited in these defendants was addressed to the proposition banks with knowledge that the mails would that the testimony adduced on the hearing necessarily be used in their collection, and was not sufficient to support a conviction the collection of the checks was a necessary under the indictment. This point was not saved by a motion to direct a verdict in the part of the working out of the scheme. In court below nor in any other manner, and fact, it was through the collection of these the general rule is that the sufficiency of the checks that the defendants collected and evidence to support a verdict cannot be re

divided the spoils of their fraud. In such viewed by writ of error, unless exception is

case the defendants were responsible for the taken before a verdict to a ruling thereon.

use of the mail by the banks, though the 17 C. J. 78, and cases cited. Only in very

entirely innocent agencies. exceptional cases will this court exercise its Spear v. U. S., 228 F. 485, 143 C. C. A. 251; discretion to review the sufficiency of the Shea v. U. S., 251 F. 440, 163 C. C. A. 67; evidence to sustain a conviction, where the. Savage v. U. S. (C. C. A.) 270 F. 14; U. point was not appropriately raised in the S. v. Kenofskey, 37 S. Ct. 438, 243 U. S. court below. Robins v. U. S. (C. C. A.) 262 440, 61 L. Ed. 836. “Responsibility cannot F. 126. The defendants have made no such be avoided by the use of an innocent agency showing as to take this case out of the general intentionally employed to reach and use the rule. Nevertheless, in view of the impor- mails in effecting a scheme to defraud." tance of the case to the defendants, we have Spear v. U. S., supra. reviewed the evidence, and are of opinion Upon a careful review of the entire recthat it was amply sufficient to justify the ord, we are satisfied that the defendants submission of the case to the jury on each were properly convicted and that the judgcount of the indictment. The evidence ment of the court below should be affirmed. showed clearly a fraudulent scheme entered Affirmed.

banks

were

ATLANTIC COAST LINE R. CO. v. McLEOD. time between 12 and 2 o'clock on the morn(Circuit Court of Appeals, Fourth Circuit ing of July 3, 1922. The freight train, conJanuary 12, 1926.)

sisting of a locomotive and 45 cars, was

traveling at a speed of around 35 miles an No. 2387.

hour. It was making so much noise that it 1. Railroads 327(2)-Pedestrian, stepping was heard by one of plaintiff's witnesses 250 in front of train at crossing, held negligent. yards away. The locomotive was equipped Where freight train with headlight lit was

with an electric headlight, burning and in traveling 35 miles an hour, and could be heard 250 yards away, pedestrian, who stepped di- good condition. rectly in front of it at crossing, was contribu- Plaintiff spent the evening preceding his torily negligent as matter of law.

injury at the home of one Jim Brewer, near 2. Appeal and error 927 (7).

the crossing. He testifies that he left BrewOn defendant's motion for directed verdict, ers about midnight, in company with two Circuit Court of Appeals must view plaintiff's of Brewer's sons, and proceeded to the home testimony in light most favorable to him.

of one Agnes Weeks, who lives near the 3. Railroads Om 338.

crossing, to employ her to hoe cotton for That train could not be stopped within dis- him next day. He states that, having left tance person down on track could be seen ex- the home of Agnes Weeks shortly after midcludes last chance doctrine.

might, he and the Brewer boys were walking

along the public highway, and were in the In Error to the District Court of the act of crossing the railroad track, when they United States for the Eastern District of

were struck by the approaching freight South Carolina, at Columbia; Ernest F. train, with the result that both of the Brewer Cochran, Judge.

boys were killed outright, and plaintiff himAction by William C. McLeod against self was seriously injured. This was plainthe Atlantic Coast Line Railroad Company. tiff's statement on the trial. A short while Judgment for plaintiff, and defendant after the occurrence, however, he stated to brings error. Reversed and remanded for the coroner of Sumter county, and also to his new trial.

attending physician, that he and his comDouglas McKay, of Columbia, S. C. panions had been drinking on the night of (Thomas W. Davis, of Wilmington, N. C., the occurrence, and that the three of them

had on the brief), for plaintiff in error.

gone to sleep on the track; that he was D. W. Robinson, of Columbia, S. C. (L. awakened by the train and was in a rising D. Jennings, of Sumter, S. C., on the brief), position, getting off, when the train struck

bim. for defendant in error.

The track approaching the crossing was Before WADDILL, ROSE, and PARK- straight, and although there was evidence ER, Circuit Judges.

as to the presence of buildings and other

obstruction which would tend to obscure PARKER, Circuit Judge. This was an the view of the track as one approached, action instituted by William C. McLeod there was no obstruction that would have against the Atlantic Coast Line Railroad shut off the view entirely of the approaching Company to recover damages for personal light of the engine. There was evidence on injuries sustained by him when struck at a the part of the plaintiff that the crossing sig. railroad crossing by one of its freight trains. nals were not given, but no explanation ofHe recovered a verdict for $2,000 in the Dis- fered as to why plaintiff did not hear the trict Court, and this writ of error is prose- noise made by the approaching train. The cuted by the company to reverse the judg- evidence was that persons lying down on the ment rendered thereon. McLeod was plain- track at or near the crossing could have been tiff in the District Court, and the company geen from the approaching train for a diswas defendant, and for convenience they will tance of from 300 to 500 feet, and that the be so designated in this opinion.

train could not have been stopped in less The injury of which plaintiff complains than the train length, which was about 1,800 occurred at or near Broadway Siding, in feet. Sumter county, S.C., where the main high- [1,2] At the conclusion of the testimony way between Pinewood and Sumter crosses defendant moved the court for a directed defendant's railroad track from Augusta, verdict, and we think that the motion should Ga., to Florence, S. C. Plaintiff and two have been granted. Whether plaintiff's inof his companions were struck at this cross- jury occurred in the manner narrated by him ing by a north-bound freight train some on the trial, or whether it occurred in the 11 F.(20) 22 manner stated to the coroner and the physi- late Judge Woods in a case arising under cian, we think that the plaintiff has failed the South Carolina crossing law, as folto make out a case of liability on the part of lows: the defendant. If we take the plaintiff's tes- "It is well settled that when the railroad timony in the light most favorable to him, company has done nothing to allay his sense as we must in considering a motion for a of danger, and there are no extraordinary directed verdict, it establishes negligence on conditions sufficient to distract the attention the part of the company; but it also es- of a man of ordinary prudence and self tablishes gross contributory negligence on possession from the duty of taking precauhis part as the proximate cause of the in- tion, a traveler will be held guilty of conjury. If the testimony of plaintiff himself tributory negligence, as a matter of law, is to be believed, he stepped directly in front when the evidence shows affirmatively beyond of an approaching train, when by the ex- dispute that he walked or drove his vehicle ercise of the slightest care he could have seen on a crossing without taking any precaution the danger and avoided injury.

whatever to ascertain if a train was apThis is not the case of a traveler in an proaching." Southern Railway Co. v. Priestautomobile, whose attention is occupied in er (4th C. C. A.) 289 F. 947; Citing Railpart with the driving of his car, and who is road Co. v. Houston, 95 U. S. 697, 24 L. Ed. unable to stop instantly because of its mo- 542; Dernberger v. B. & O. Ry. Co. (4th mentum. It is the case of a pedestrian pro- C. C. A.) 243 F. 21; U. S. Director Generceeding leisurely down a highway at night, al of Railroads v. Zanzinger (4th C. C. A.) with nothing to do but look and listen while 269 F. 552; Payne v. Blevins (C. C. A.) approaching the crossing, who has it in his 280 F. 310; Bush v. B. & 0. Ry. Co. (4th power at every moment up to his going upon C. C. A.) 288 F. 845. the track to stop and avoid the danger, and This rule is stated by the Supreme Court who, nevertheless, with his eyes open and

of South Carolina as follows: his brain clear, walks deliberately in front of "The law imposes upon every capable a freight train of 45 cars, running at a speed person the duty of observing due care for of 30 miles an hour, and making so much his own safety when about to cross a railnoise as to be heard 250 yards away.

road 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 cross- serve 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 mean- fore 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 [3] In passing upon the question as to the upon the track, he was guilty of culpable right of defendant to a directed verdict, we negligence, and so far contributed to his in- have considered the evidence in the light most jury as to deprive him of any right to com- favorable to plaintiff, and have disregarded plain of another. Railroad v. Houston, 95 the evidence introduced to sustain defendU. S. 697, 24 L. Ed. 542.

ant'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

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