scheme to defraud under Criminal Code, § 215 (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.

10. Post office 35-Intent to use mails at time of entering into scheme need not be shown (Criminal Code, § 215 [Comp. St. § 10385]).

In prosecution for violation of Criminal Code, § 215 (Comp. St. §, 10385), it is not necessary to prove that defendants, at time they entered into common scheme, intended to use mails, but it is enough that mails were used in execution of scheme.

11. Criminal law 680(1)-That evidence was introduced after ruling that paragraph was insufficient held immaterial, it being admissible under other paragraph.

That evidence was received after ruling that paragraph in indictment was insufficient, rather than beforehand, held immaterial, as it tended to show offense charged in other paragraph.

12. Criminal law 423(1).

Acts and statements of party carrying into effect purpose on which he is engaged in common with others are admissible against his fellow collaborators.

13. Criminal law 423 (7)-Statements and acts of members of brokerage firm and clerk in furtherance of its scheme to defraud customers admissible against participants.

Acts and statements of brokerage firm and its clerk, who were involved in furtherance of its scheme to defraud its customers, were admissible against all participants in scheme.

14. Criminal law 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

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

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 con

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), plaintiffs in error Nicholas and Truesdell.

for

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

ants 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 appearance of color and truth, that such purchases 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 operat ing 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

ror Gilbough. The method of operation in each was somewhat different. In the case of the Curb Exchange, the customer would order shares of stock from the firm. An order card went to the margin clerk, to certify that the customer had sufficient margin on hand. From him it went to one of the members of the firm, who was then in the "cage," where the orders were transmitted to the brokers on the Exchange. If marked "A," the clerk charged with transmitting the order over the telephone knew it was for the broker who represented them on the Curb Exchange. At the time he gave the order of purchase, he would also give an order for sale of the same amount of stock at the same price. He would telephone to the plaintiffs in error McQuade and Quillan, their brokers at the Curb Exchange, "to buy and sell shares at

at

"When the particular share of stock hit the price or under, an answer would come from the curb broker, "You bought and sold Then a white card was prepared, showing the sale, charging it to the "stock loan account." The "stock loan account" was the name under which the copartnership carried the account in which they covered the sales then made to offset their customers' purchases. The purchase was noted on the "purchase" blotter, and the sale on the "sale" blotter. They showed that the plaintiff in error McQuade, as a broker, effected the purchase for the customer, and the plaintiff in error Quillan the sale for the stock loan account. In a column on the blotter there was marked the number of the certificate. An "ex check" stamp was put against the customer's name, corresponding to the "ex check" stamp against the stock loan entry. The "ex check" meant that the two transactions were offset, one against the other, and that accordingly there was an exchange of checks.

[5] In order to cover up the transactions, there was an actual exchange of checks. If it was a genuine purchase and a genuine sale, unrelated to each other, the copartnership would send the curb broker, McQuade, their check for the purchase price, and the plaintiff in error Quillan would have paid for the stock sold by the copartnership. The failure to show such payments would disclose the scheme. Therefore, to guard against this at the close of the day, the copartnership sent the plaintiff in error McQuade their check, and McQuade or Quillan sent the firm his check for the same amount, or the copartnership and McQuade would lump all the transactions and exchange checks covering

all of them for the one day. The charges for the transfer stamps were included in the monthly statements of McQuade and Quillan to the copartnership. After this, the copartnership mailed a confirmation, showing the purchase, to the customer. They charged him a commission and the usual amount of interest, calculated at the market price of the stock. The customer already having put up the margin, as the stock fell in price, he was called upon for further margin by the copartnership; otherwise, they said, they would sell his stock. The record does not disclose what McQuade did after he received the order to buy and sell. The Curb Exchange had no clearing house at this time, and the curb broker and the copartnership carried on and covered up their transactions. There was no ticker or records kept by the Curb Exchange. The evidence amply supports each instance charged in the several counts of the indictment upon which the plaintiffs in error have been convicted of the fraudulent scheme and in the mailing of the respective letters as charged.

In the Consolidated Stock Exchange, the plaintiff in error Gilbough acted somewhat differently. There brokers, when they acted legitimately, purchased the stock for customers and held it for them on margin. Gilbough did not execute the orders himself. He was an intermediary between the customer, which was the copartnership, and the brokers, or specialists, as they are called, dealing on the floor of the Consolidated Exchange in the stocks they wanted. It was the plaintiff in error Gilbough who suggested the method of operation on the Consolidated Stock Exchange. He made the arrangements with the brokers or specialists on the floor, under which they would accept two orders from the copartnership covering the same check, one canceling the other, and gave the copartnership a confirmation of the order. The firm would then show his name as broker on the confirmation sent to their customer. The specialist's pay for his services was one-eighth or one-quarter of a point on each share. If the customer's order was to buy at a price, the specialist would not buy until the market dropped one-quarter of a point; then he would immediately sell the same at the same price. Through the copartnership, he would get his charge of a quarter of a point. If the order was to sell at a price, he would not sell until the market rose onequarter of a point, and then buy at the same price. A purchase card was made to conform with the sale card, showing the sale to the