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10 F.(2d) 711

the other to the lintel. They operated by gravity when the catches melted. These, however, were shown as set in the walls of the rigging loft, and not in a skylight placed upon the roof of the loft itself.

The District Judge dismissed the bill be cause of noninfringement, holding the patent valid.

William E. Warland, of New York City, for appellant.

Cox, Kent & Campbell, of New York City (Clarence G. Campbell, of New York City, of counsel), for appellees.

Before HOUGH, MANTON, and HAND, Circuit Judges.

PER CURIAM. We agree that the decree was right, but not for the reasons given. To us it seems that the patent was infringed, but invalid, if interpreted to cover the defendant's skylight. We rely for anticipation upon Freeman's article in volume 27 of the Transactions of the American Society of Mechanical Engineers. The only differences between the defendant's skylight and Freeman's windows are that his were set in the walls of the rigging loft and were held by fusible catches, instead of by chains with fusible links. Neither difference appears to us patentable.

Freeman's windows were designed for exactly the same purpose as Goldman's and, being set in the rigging loft, would be generally, if not uniformly, higher than the roof of the auditorium. Of course, they must be unobstructed to open at all. We recognize that Goldman's windows were in a skylight, and that a skylight occupies only a part of the roof, but that appears to us of no importance in function or method. The only invention lay in the means of securing their automatic opening when the stage got afire. That occurs in exactly the same way, whether they are set in the walls of the loft, or in the sides of a skylight on top of the loft. Indeed, such skylights were disclosed by Freeman himself in his Figures 5, 5a, 5b, 5c, and 5d. These are distinguished from the patent in suit only because the windows are vertical, instead of inclined, and open by counterweights. Goldman did no more than to put the windows of Figure 7 into the skylight of Figure 5. It seems to us that Freeman had exhausted all the invention which was in the idea.

This covers claims 1 and 3, which do not include the feature of a "flexible connection" with a fusible link. But that was in Freeman's figures, 5 et seq., and also in Voight

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Various means used in committing offense may be joined in indictment without duplicity. 3. Indictment and information 125 (19)Post office 48(8)-More than one misrepresentation may be charged, as long as they are part of same scheme, and proof of one will sustain indictment (Criminal Code, § 215 [Comp. St. § 10385]).

Under Criminal Code, § 215 (Comp. St. § 10385), more than one misrepresentation or pretense may be charged in indictment, so long as they are part of the same scheme, and may

be set forth in one count, and sufficient aver

ment and proof of one will sustain the indictment and warrant conviction. 4. Indictment and information

2(2), 119–

Allegation found to be unintelligible as to means of carrying out scheme might be regarded as immaterial or surplusage, when another means alleged (Const. Amend. 5).

Where indictment for using mails to defraud alleged two means of carrying out scheme against different persons one found to be unintelligible might be disregarded, as immaterial or surplusage, without invalidating indictment, or violating rights under Fifth Amendment of the

Constitution.

5. Post office 49-Evidence held to support conviction of use of mails in fraudulent scheme (Criminal Code, § 215 [Comp. St. § 10385]).

Evidence held to support conviction of using mails in fraudulent scheme, in violation of Criminal Code, § 215 (Comp. St. § 10385). 6. Post office 35-Brokers held part of customer's scheme to defraud when participating in with knowledge thereof (Criminal Code, § 215 [Comp. St. § 10385]).

Brokers who knew of fraud indulged in by firm they represented on exchange, and participated therein, held to have been part of the

*Certiorari denied 46 S. Ct. 475, 70 L. Ed.

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scheme to defraud under Criminal Code, § 215 14. Criminal law (Comp St. § 10385).

7. Post office 35-All who with criminal intent join themselves to principal schemer are liable (Criminal Code, § 215 [Comp. St. § 10385]).

All who with criminal intent join themselves, even slightly, to principal schemer, are liable under Criminal Code, § 215 (Comp. St. § 10385), although they may know nothing but their own share in the aggregate wrongdoing.

8. Post office 35-Floor broker, assisting copartnership in illicit trading, held participant in scheme to defraud (Criminal Code, § 215 [Comp. St. § 10385]).

Floor broker, who assisted copartnership engaged in bucketing orders with knowledge of the illicit trading, held to have been participant in scheme to defraud customers, under (Criminal Code, 215 [Comp. St. § 10385]).

9. Post office 35-President of Stock Exchange, advising parties whom he knew were insolvent and engaged in illegal business, to continue in business, held accessory to scheme to defraud (Criminal Code, §§ 215, 332 [Comp. St. §§ 10385, 10506]).

President of Stock Exchange, who had advised copartnership engaged in running bucket shop to continue business when they were insolvent and indulging in illegal practices, held an accessory, under Criminal Code, § 332 (Comp. St. § 10506), to violation of section 215 (Comp. St. § 10385), and chargeable and triable as principal.

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434-Books containing secrets of scheme to defraud admissible against members of firm having knowledge of them.

Books of brokerage firm, which held secret under direction of members of firm, held admisof firm's bucketing, kept with knowledge and sible against them in criminal prosecution. 15. Criminal law 824 (8)-Proper course of defendant, complaining of admission of evidence as to him was to ask for instruction as to effect (Criminal Code, § 215 [Comp. St. § 10385]).

Where defendants, in prosecution for violation of Criminal Code, § 215 (Comp. St. § 10385), complained of admission of books kept by certain of defendants as against them, their proper course was to ask for an instruction limiting their effect.

16. Criminal law 824 (8)-Failure to instruct jury as to limitation of evidence, in absence of request, is not reversible error.

Failure to instruct jury as to limitation of evidence, as affecting certain of defendants, is not reversible error, in absence of request for such instruction.

17. Criminal law

807(1).

Requested instruction, which was argumentative and would have caused confusion in minds of jury, was properly refused.

18. Criminal law 434.

Records of committees on Stock Exchange, made at meetings at which defendants were represented, were admissible in evidence against them.

19. Criminal law 695(3).

General objection to evidence admissible against some of the defendants, was insufficient. 20. Criminal law 351 (10)-Evidence of efforts made to induce witness to leave is competent.

Evidence of efforts made by defendants to induce codefendant to leave New York, so as not to be available as witness in Stock Exchange investigation, held competent evidence. 21. Post office 49-In prosecution for using mails to defraud, proof on cross-examination that defendant had dealings with other firms engaged in like operations as his codefendants held competent to show knowledge.

In prosecution for using mails in scheme to defraud, on cross-examination of defendant, who was president of Stock Exchange, it was competent to show that other firms with which he came in contact were bucketing orders in much the same manner as his codefendants, to show his knowledge.

22. Witnesses 277 (1)-Defendant, on witness stand, is subject to inquiry as any other witness.

When a defendant takes the witness stand, he occupies a dual capacity, and, as witness, is subject to inquiry as would be any other wit

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10 F.(2d) 711

torney during summation was not heeded, was not error.

24. Criminal law 847-Court is not obliged to go through all requests, and see if they have been covered, and errors and omissions should be pointed out.

Court is entitled to have his attention called to some error in his colloquial charge, or some specific thing he has omitted therefrom, and is not obliged to go through all requests, and see if they have been covered in main charge.

25. Criminal law 858 (3)—Jury may call for exhibits at any time, and consider them in their consultation.

Exhibits may at any time be called for by jury, and taken into consideration in their consultation, and jury has right to examine them as to any particular.

26. Criminal law 858 (2)-Permitting jury to examine books of account after retirement and at their request held proper (Criminal

Code, 215 [Comp. St. § 10385]).

In prosecution for violation of Criminal Code, 215 (Comp. St. § 10385), permitting jury, after retirement and at their request, to examine books of account of defendant brokerage firm, showing payment of commissions to floor broker, also a defendant, held proper.

In Error to the District Court of the United States for the Southern District of New York.

William S. Silkworth and others were convicted for violation of Criminal Code, § 215, and they appeal. Affirmed.

Nathan A. Smyth, of New York City, for plaintiff in error Silkworth.

Frederick J. Sullivan, of New York City (Philip C. Samuels and Max Lazarus, both of New York City, of counsel), for plaintiff in error Gilbough.

Jacob M. Mandelbaum, of New York City (James I. Cuff, of New York City, of counsel), for plaintiffs in error McQuade and Quillan.

William C. Fitts, of New York City (Albert Massey, and Michael S. Gleason, both of New York City, of counsel), for plaintiffs in error Nicholas and Truesdell.

Emory R. Buckner, U. S. Atty., of New York City (Robert E. Manley, David P. Siegel, and Ben Herzberg, Asst. U. S. Attys., all of New York City, of counsel), for the United States.

Before ROGERS, MANTON, and HAND, Circuit Judges.

MANTON, Circuit Judge. The indictment charges, in 14 counts, violations of section 215 of the United States Criminal Code (Comp. St. § 10385). The charging phrase

of the first count is reiterated without repetition in each of the remaining counts of the indictment. Only the mailing matters set forth in each of the counts is different.

The charging phrase outlines devising or intending to devise a scheme or artifice to defraud. It may properly be classed in two charges of a scheme or artifice to defraud as follows:

(1) It was a further part of such scheme and artifice so devised and intended to be devised that the defendants Raynor, Nicholas & Truesdell would comply with the orders of certain of the customers for the purchase of stocks, bonds, and securities, and that the defendants Louis Gilbough, McQuade Bros. and Francis X. Quillan, who were engaged as brokers in buying and selling stocks, bonds, and securities in the open market, would actually purchase for the firm of Raynor, Nicholas & Truesdell, for the accounts of such customers, the stocks, bonds, and securities ordered by the latter, it being part of the scheme and artifice aforesaid that the defendants Louis Gilbough, McQuade Bros., and Francis X. Quillan would, with the consent and at the direction of other defendants, immediately following such purchases, sell the stocks, bonds, and securities so purchased, without the knowledge or consent of such customers, and that the defendants Raynor, Nicholas & Truesdell held and retained the stocks, bonds, and securities so purchased subject to the further orders of such customers, and conceal from such customers the fact that shares of stock so purchased had been resold, thereby inducing such customers to pay interest and other charges upon sums of money remaining unpaid by them upon the purchases aforesaid.

(2) It was a further part of the scheme and artifice, devised and intended to be devised as aforesaid, that the defendants Raynor, Nicholas & Truesdell falsely and fraudulently represent and pretend to certain other customers that the firm of Raynor, Nicholas & Truesdell had purchased stocks, bonds, and securities pursuant to such customers' orders, when in truth and in fact such purchases had not been made, and to enable the defendants Raynor, Nicholas & Truesdell to represent and pretend, with an of color and truth, that such purappearance chases had been made, the defendants planned and intended that the defendants Louis Gilbough, John H. McQuade, Edward A. McQuade, and Francis X. Quillan would falsely and fraudulently furnish to the defendants Raynor, Nicholas & Truesdell, who

would then falsely and fraudulently pretend to receive information and data to the effect that the orders of the customers were actually and in fact executed by the defendants Louis Gilbough, John H. McQuade, Edward A. McQuade, and Francis X. Quillan at the instance and direction of the defendants Raynor, Nicholas & Truesdell, who would then falsely and fraudulently make and cause to be made and deliver and cause to be delivered to the customers through the post office establishment of the United States memoranda and paper writings which purported to show, and in substance and effect did show, that such orders for the purchase of stocks, bonds, or securities had been executed, carried out, and more particularly that the defendants Raynor, Nicholas & Truesdell had purchased the required shares of stock, bonds, or securities from the defendants Louis Gilbough, John E. McQuade, Edward A. McQuade, and Francis X. Quillan in the open market, and were holding and retaining such shares of stock, bonds, or securities for the account of and subject to the further orders of such customers who, as the defendants planned and intended, would be induced to pay interest and other charges on sums of money remaining unpaid by such customers upon the purchase price of such stocks, bonds, and securities.

At the trial, motions were made to dismiss and quash the indictment, because it was claimed that the allegations with reference to the scheme to defraud were repugnant and unintelligible. After consideration, the trial judge sustained this view as to the charge set forth in the first paragraph above, but held that the remaining allegations set forth sufficiently a charge of devising or intending to devise a scheme or artifice to defraud. He stated that he would exclude testimony tending to support the charge as set forth in paragraph 1, and in charging the jury the court said, speaking of the charge of the indictment: "They allege in the indictment that these defendants entered into a scheme to defraud, and after omitting a portion of the indictment, which I said, because of its language, must be disregarded, they are charged as follows."

It is argued that these rulings of the court, both on the motion to dismiss the indictment and in the charge to the jury, changed the indictment and placed the plaintiffs in error on trial on a charge different from that set forth and as found by the grand jury, and that this violated their rights under the Fifth Amendment of the Constitu

tion of the United States. The argument is that under Ex parte Bain, 121 U. S. 1, 7 S. Ct. 781, 30 L. Ed. 849, the rulings of the court breached article 5, which provides that no person shall be held to answer for a capital or otherwise infamous crime, unless upon presentment or indictment of a grand jury, and that, when an indictment is filed with the court, no change can be made in the body of the instrument by order of the court without a resubmission of the case to the grand jury, and the fact that the court may deem the change immaterial and strike it out as surplusage would not change the result, and this for the reason that the instrument as thus changed is no longer the indictment of the grand jury which presented it. [1,2]. Assuming, as we must, in conformity with the ruling of the trial court, that paragraph 1, which charged the means of operating the scheme, was obscure, or, as put by the court, "unintelligible," did not vitiate the indictment as a whole, providing the language, disregarding the ambiguous portion, sufficiently set forth a general scheme which constituted an artifice to defraud. The indictment sets forth two modes of operation by which the firm of Raynor, Nicholas & Truesdell, with the assistance of the other plaintiffs in error planned and carried out their scheme of bucketing. As apparently attempted to be set forth in paragraph 1, they planned, first, to buy the stock the customers ordered and then to sell it without their consent; second, against customers, they intended not to buy the stock, but nevertheless to represent that they had. The indictment does sufficiently show the latter artifice to defraud as operated against certain customers. It was proper to include the two modes of operation in an indictment, and no duplicity can be charged against such an indictment. Byron v. United States, 259 F. 371, 170 C. C. A. 347. Various means used in committing the offense may be joined without duplicity. Gourdain v. United States, 154 F. 453, 83 C. C. A. 309.

[3,4] The fallacy of the claim that the indictment is bad is due to the failure of the plaintiffs in error to observe that charges 1 and 2, as above given, are independent of each other. The introductory lines of each paragraph distinguished the application of that paragraph, one from the other. Sufficiency may not be tested by reversing the paragraphs as they appear in the indictment, as is attempted by some of the plaintiffs in error. No reference is made to the limitation of the first paragraph "to certain of the cus

10 F.(2d) 711

tomers" and of the second "to their customers." The language used relates to different groups of victims. Under section 215, more than one misrepresentation or more than one pretense may be charged, so long as they are part of the same scheme, and, indeed, they may be set forth in one count. A sufficient averment and proof of one will sustain the indictment. Proof of one of the several means or methods alleged in the indictment will warrant the conviction. Nash V. United States, 229 U. S. 379, 33 S. Ct. 780, 57 L. Ed. 1232; Chambers v. United States, 237 F. 513, 150 C. C. A. 395; Bergera v. United States (C. C. A.) 297 F. 112; Myers v. United States, 223 F. 925, 139 C. C. A. 399. An indictment for false pretenses is good, if any one of the pretenses set out is sufficiently alleged. Commonwealth v. Morrill, 62 Mass. (8 Cush.) 571; Commonwealth v. Parmenter, 121 Mass. 354; State of Iowa v. Nine, 105 Iowa, 131, 74 N. W. 945. Therefore one of the paragraphs-and certainly the one found to be unintelligible-may be regarded as immaterial or surplusage, and as such it could be disregarded, and the indictment is good without reference to it. Maresca v. United States (C. C. A.) 277 F. 727; Anderson v. United States (C. C. A.) 293 F. 1018.

The court had no alternative but to try the plaintiffs in error and to instruct the jury to disregard the allegation which was insufficiently set forth. The Queen v. Wickham, 10 Ad. & E. 34; People of the State of New York v. Blanchard, 90 N. Y. 314. In Ex parte Bain, supra, there was held to be an amendment to the indictment. At bar, nothing was struck from the indictment, nor was it rephrased. The court merely disregarded the unintelligible part of the indictment, which did no violence to what remained as a sufficient charge of an artifice or scheme to defraud, as within the doctrine of Ex parte Bain. To hold otherwise would be an undue extension of that doctrine, and would be at variance with the development of the cognate law since that decision. Hall v. United States, 168 U. S. 632, 18 S. Ct. 237, 42 L. Ed. 607; Goto v. Lane, 265 U. S. 393, 44 S. Ct. 525, 68 L. Ed. 1070; Friedman v. United States (C. C. A.) 276 F. 792; Anderson v. United States (C. C. A.) 294 F. 593. "The statute, not the drafter of the indictment, measures the law. If he includes

all the essential elements and more, the pleader cannot enlarge the law, and the case will be sustained and the law vindicated by ignoring the unessential allegations."

Meyer v. United States, 258 F. 212, 169 C. C. A. 280.

In Goto v. Lane, supra, the Supreme Court pointed out that there was an actual amendment of the indictment in Ex parte Bain. De Luca v. United States (C. C. A.) 299 F. 741, and Dodge v. United States, 258 F. 300, 169 C. C. A. 316, 7 A. L. R. 1510, are distinguishable. In the latter case, a part of the indictment was stricken out, which changed the charge. In the former, there was a consolidation of indictments, which was held to be erroneous. It has never been held that an indictment is bad because one of several charges of misrepresentations or false pretenses is badly laid. What occurred in ruling on the motion to quash the indictment and the instruction to the jury did not constitute error.

Plaintiffs in error Truesdell and Nicholas were copartners with one Raynor (who became a witness for the government) as brokers. No doubt their scheme of carrying on their business involved false representations and constituted a scheme to defraud, within section 215 of the United States Criminal Code. They began business on August 1, 1920, and ended as bankrupts May, 1922, when they were short about $3,750,000. At first they purchased the stock ordered by their customers, and when they thought the market would drop, and they could advantageously take a position against their customers, they sold the customer's stock. Later under their scheme of operation, they did not purchase the stock in the first instance. Indeed, they took positions against their customers within a week after they entered business. They first traded in a small way, and, as the financial advantage of taking positions. against their customers appeared to them, they did so on a larger scale, with the expected result. Early in the partnership relations, Raynor expressed regret that they had not taken a position against their customers, and stated that, if they had, "we would have made some money." Truesdell and Raynor both advised their stock record clerk that they could not possibly exist on commissions and interest alone. They thus gambled with the chance to make money against the interests of those who trusted them. On the whole, bucketing was the rule, rather than the exception, in their business. In the latter stage, it was almost their sole business.

On the New York Curb Exchange, the firm employed the plaintiffs in error McQuade and Quillan, and on the Consolidated Exchange they employed the plaintiff in er

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