vittlie ofseotiop72 bUM The: Power oftMs court to reJieve hhnfrliliu depends upon the validity of section 72 of tlie Penal Code,'aa ,given effect by the court of appeals. If tbat provision: of the statutes of the istate be :valid, the prisoner cannot ,be releafleQ. hythiscourt,' whatever may be the opinion of this court as to the correctness of the conclusion of the court of appeals (see People v. Jaehne, 8 N. E.' Rep. 374)i that the law applicable to the prisoner's case was to be found in section 72 of the Penal Code, and not in section 58 of the consolidation act. It is thus apparent that the question presented to this court by the present application relates to section 72 of the Penal Code, and to that alone. In determining the validity of that section, any construction given to itpy the.court of appeals is controlling; and the decision of the court of appeals in O'NeiU'8 Case, where the indictment was under the Same statute, musttherefore be observed. People v. O'NeiU, 16 N. E. Rep. 68. In that case the court of appeals declared tha.t section 72 of the Penal.Code was to be construed as prospective only in its 't)peration. Thisconstru<;tioti,put upon a of the state by the higbest court of the state, in·the only case where the precise question ,Ua8 been distinctly presented, inust be followed by this court on this ocQasidn, under the familiar rule that the construction of a state statute adopted by the highest court of the state is regarded as part of the statute by the national courts. It may be added that, if the question whether section 72 of the Penal Code was prospective in its operation were open to decision here, no ground is discovered upon which to reject the constructibn adopted by the court of appeals, in view of the positive guage of the l'enal Code. Following that construction, and holding, as I am bound to hold, that the statute under which the prisoner is confined is prospeotive only in its operation, the question presented by the petitioner is reduced to this, namely, whether a statute in force at the time the offense was committed, which increases the punishment of that crime, but is prospective alone in its operation, is an ex post facto law. On that' question there is nothing to be said. The motion for a writ of habta8 C01p'tUlis denied.
(Dil/trice Court, E. D.
Carolina. April 27. 1888.
POST·OITlOE'-USE OJ' MAiLS TO DEFRAUD-WHAT CONSTITUTES OFFENSEREV.
of not paying for them, under the false pretense that the persons mailing the
ST. §G4BO. Forming Ilo plan to
by ordering goods by mail, with the intention
orders are merchants, is a "scheme Of' artifice to defraud, " within the mean· ing of aection 648000he Revised.Statutes; and the act of mailing a letter or· derin,g goods in .pursuance of such schemeis indictable under such statute. 1
at end of case.
UNITltD STATES V. WATSON.
Evidence of the of similar letters, not iletfbl:th In the bill of Indictis admissible on the question of intent. . . (SUllab'U8 by tM Oourt.)
SAME-EvIDENCE-MAII,ING OF SIMILAR LETTERS.
Indictment for Using the Mail to Defraud.
Un motion to quash.
SEYMOUR, J. The motion to. quash must be depied. The indictment is framed under section 5480 of the Revised Statutes. The statute ishes by fine and imprisonment the act' of devising a scheD:\e to to be effected by opening correspondence with another person by means of the post-office department, and the placing of any ,letter in a post>office, in execution of such scheme. A scheme is charged in the bill. It consists of a plan formed by the two defendants to order merchandise by letters written under a printed heading, describing themselves as "Watson &00., Wholesale Merchants," whereas the firm was pretended and fraudulent; and promising to pay promptly for the same, whereas the defendants intended to, obtain the merchandise' and not pay therefor. It isfurther charged that, for the purpose of executing such scheme, the defenqants placed in the p()st-office o.,t Newbern a letter addres3edto oneMo Payne, in New York, ordering a sulky, and promising to pay therefor. ' The court does not intend, in deciding this motion, to pass upon the for.m of the bill. It is the first one found by a grand jury in this circuit founded upon the act of June 8, 1872, and has not been considered in detail. That the acts charged come within the statute is not to be doubted. A plan to cheat by ordering goods through the mail, with the intention of not paying for them, under the false assertion that the persons mailing the orders are wholesale merchants, is certainly a "scheme or artifice to defraud." Doubtless the facts would also constitute evidence of "false pretense" under the state statute against cheating; . but the use of the D,laii as a part of the plan brings the act within the jurisdiction of the United States courts. It is claimed that the statute waS aimed agaillst lottery There is a statute (Rev. St·. § 3894) espeCially devoted to that matter. The words of section 5480 are plainly'general. The mailing of certain letters is charged in this bill, but evidence of the mailing of similar letters in pursuance of the scheme alleged to have been formed by the defendants will beheld relevant on the questi<>il of intent. . . The defendants were subsequently found guilty, and sentenced, under the indictment.
POST-OFFICE-USE OF MAILS TO ST. U. S.5 5480; The scheme to defraud, indictable UJldersection 5480 of'tbe Revised Statutes, is to be effected- by the deviser of it opening a correspondence by mail, or by his inciting some one else to open such correspondence witb him. Brand v. US., 4 Fed; Ret>. 894. T}J.e sendi4g through the mail of a letter calculated to induce the purchase' ·of 'COunterfeit money at a low bythe price, for the purpose of circulating it,coJ!.stitutess\lch an offense.a& is stattite,lIltbough no evidence of an inte'l1tlonto defraud an:y Pllortie1J.1ar person is shown: v. Jones, 10 Fed. Rep. 469. 'In his opinion in this case"BElilEDICTJ J.,says: "Any scheuie the necessary result of which would be the defrauding of someoody is a scheme to defraUd, within the meaning of section 5480. * · * The giat of the offense con-
sists in the abuse of the mail, The corpus deLicti was the mailing of the letter in e:X;.eclltion o! scheme." One who advertises for agents to sell goods and distrib\lte circn1ars, with no inten1;ion'to employ such agents, but intending to incite persons to send him money for agents" outfits, without intending any equivalent for the same, and to carry out this device takes a letter and packet from the post-office, and deposits a packet in the post-office, is guilty of the offense described in the statute; though it li'lso appears that defendant haS' filled all orders made upon him for goods sold. U. S. v. Stickle, 15 Fed. Rep. 798. The court say in tbis case that "the offense described in the, statute is a miSdemeanor,,sim,p1 ,' and not, a crime of ,a high grade 0,1' a Y felonious character." An, attempt to defraud a creditor by inclosing with a letter to him worthless slips of'paper, in plage of money which the letter states is inclosed thereWith, and Sending," 6UC/l, let,tel' and slips to the creditor through the mail, is not such an offense as,ilicreated by the statute. 'U. S. v. Owens, 17 Fed. Rep. 72. The elements'of the offense created by the statute are (1) the devising, or intending to devise, a scheme or artifice to defraud; (2) the opening, or intending to open, correliPondence or cOIllmunication with some other person, or inciting such person to open correspondence bl means of the post-office department, with the one devising the soheme; and. (8) In pursuance of the scheme, putting a letter or packet in the mail, or taking one OUt. There must be'a precedent fraudulent intent, and it is not fraudulent, in itself, within the meaning of the statute, for an insolvent to order goods without the present means of paying for them; neither does it faU within the statute for one to order, and,.afterwards purpose of escaping payment. U. S. v. Wootten, 29 Fed. 7U',.\.' ' , In U. S. v. 18 Fed. !tep. 907, which was 'an indictment under the aforesaid BLODGE'!:T, J" ill charging the jury, said: "It is not necessary, in order to make out a case under the law, that the defendant shall be the inventoI' or originator of the lSeheme or artiflce!to defmud. *, ** But if a person uses or attempts to use an old sCheme or device for purposes of fraud, by means of the mails, he is as clearly within tbescope of this law as ,if he was the first to have conceived or thought of such scheme. " '1 As to the ,form and sufficiency of an 'indictment under the section, see U. S. v.Martin, 28 Fed. Rep. 812; In re Haynes, 30 Fed. Rep. 757 j U. S. v. Hoeflinger, 33 Fed. Rep. 469; Ex parte Henry, 8 Ct, Rep. 142; U. S, v. Hess, 8 Sup. Ct. Hep. 571.
MCCARTHY 'V. CLARK.
w: D. l'enn8ylvania.
PATENTS FOR INvENTIONS-PATENTABILITy-ApPARATUS FOR CLEANING CESSPOOLS. "',
Clailll.s 1, 4. and 10 of ,letters patent No. 138,034, issued to William C. McCarthy, Apri122; 1873. for an improvement for apparatus for. cleaning cesspools,'held; in 'view of the state of the art at the date of their issuance, not to describe a 'patentable invention
, In Equity. Bill to restrain infringement of patent. 'rhe patent referred to in the opinion is No. 138,034, issued to Will. iam C. McCarthy, April 22, 1873. Wm. L. Pierce, for complainant. T. H.' DaT>UJj for defendant. PER CURIAM. The patent upon which this suit is founded, is for an improvement for apparatus for cleaning cess-pools, etc., and contains 10 claims, the first,fourth, and tenth of which are involved in this controversy. These three claims, taken together, comprehend the same me· chanical elements, and are divided into three only nominally separate combhiations: 'All these elements are old. Not one,of them isnewj and in view of the state of the art at the date of the patent, which is April