UNITED STATES V. SMITH. (Dtstlr!ct Oowrt, E. D. Wisconsin. March 28,1891.)
Ul!ING MAILS TO DEFRAUD-INDIOTMENT.
An indictment charging defendant with a echeme to defraud, intending to enp;age apartments to be furnished and decorated as a Chinese physician's office, and to represent to various persons through newspaper advertisements, circulars, and letters, to, be sent post-office establishment of the United States that he was a Chinese physicllln, well skilled in the science of medicine, etc., and having devised the aforesaid scheme to defraud, to be effected by opening correspondencewith various persons by means of the post-office establishment of the United States, did in and for exe(.lUting said scheJ;lle and in attempting so to do deposit in the pos!romce, to be senli etc., a certain letter, etc., is insuffiCient to charge an offense under Rev. St. U. l:i. 5 5480, amended by 25 St. 873 because it fails to charge an intent to use the mails to defraud otherwise than by implication or recital.
The charge of such an unexecuted Bcheme is nota sufficient allegation that defend· engaged in an unlawful business to bring assumption and use of and request to be addressed by a fictitious name within Rev. St. 5 5480, subsec. 2, and make it an offense. ·
EliAu Colman, U. S. Diet. Atty., and C. S. Carter, Asst. U. S. Dist.
J.Y: Quarles, for defendant.
JENKINS, J. The Revised Statutes (section 5480, as amended by 25 St. 873) provides that"If any person, having devised or intending to devise any scheme or artifice to defraud, to be effected by either opening or intending to open correspondence or communication with any person by means of the post-office establishment of the United States, or by inciting such other person to open comm unicatiol1 with the person so devising or intending, shall. in executing or attempting to execute such scheme. deposit in the post-office for transmission by mail any letter, packet, writing. circular, pamphlet, or advertisement, or shall receive auy such therefrom shall be punished," etc. Subsection 2 of section 5480, as amended, declares thatco Any person who in and for conducting, promoting, or carrying on in any manner by means of the post-office establishment any scheme or device as above mentioned, or any other unlawful business whatsoever, shall use, assume, or. request to be addressed by any fictitious, false, or title, name, Ot" address, or name other than his own proper name, or shall take or receive from the post-Office any letter. postal-card, or packet addressed to any such fictitious name, shall be punished," etc. The indictment contains three counts,-the first two preferred under the first provision of the section, the third under subsection 2. The defendant demurs separately to each count that no offense is stated within the comprehension of the statutes to which the indictment is addressed. The first two counts are alike, except as to the time of the offense, and may be considered together. It is therein charged that the defendant devised .a Bcheme to defraud various persons, and particularly , out of a large sum of money by means of false pretenses and fraudulent representationB, with intent to obtain such money without consideration, . v.45F.no.8-36
and to convert it to his own p,sej the defendant intending in and by said scheme to engage comm&uious apartments as a place of business on Grand avenue, in the. business portic;m. of the city of ,Milwaukee, the apartments to' be furnished and decorated with designs and devices in imitation of Ohinese articles, so as tQrepresent a Chinese physician's office,andtofa}selyand fraudulentlj' represent to the person mentioned ILnd " ' .. cifcu1ars.and letters. to be sent tliroilghtbe post-office establIshment of. United States. was a Chinese physician. well skilledin the science of medicine, and posSilssedsuperior . .. ... i.·n p·.l'eSCribin.g. .. . · fo.r kno'Y Iedg. . 'a. ab i1ity in .. ily -.-- and ofothers;;lnd,that he possessedcertalll rare ChInese heroll aDd medicines of,great andvahie in the treatment of diseases whereof - - - and others wereaffiicted, andthatforcertain,monetary consideration to be paid him he eoiIld'aqd would cure .......:..--imd others of theirq,\s,e,ases . by means '()f. nietlicinesto. be prescribed by him, and thus by talse pretenses and representations to i ll d\1ce-,-,-,,- and others to pay him large sums of money, without other consideration therefor, and to convert the same to his own use; the defendant well knowing,asthe he. was physician,. or a physicil'u o(allY kind; that he had no sk:ilIin the sdence of medicilie; that he had no special edge or ability in or prescribing remedies for the diseases of,-'-"-' or of others; that he possessed no Chinese herbs 01' medicine!!; that the 'pretended Chinese herbs and medicines had no curative power or value whator oth,er!l;,that he could not cure her or them of their diseases; and that he intended to obtain her and .by th,e .. stated pretenses and fraudulent' representations, ,other c,oIlsid\ltation therefor., and t,o ,coilvert such money t? his own use." ".' '," ,. .' " The then, proceeds to sta'te "Having theretoforedevised as aforesaid; ,the aforesaid scheme to defraud, to beeftectedby.openlng correspond6flce,with said - - '-.and said 'other perBons by means a! the post-office establishment of ,the United StaLes, and by inciting the said - - and said other. persons: 1.0 open com with and in so to do, on. him," did, inand ,for executing sah,i etc., deposit 'in the post-office, .. _, be sent to the said ---,a.certain letter, etc. to ·. , '"I " , 'r: ;; ' ; ' ," ',;'" . ... It is objected .to these counts of the indictment (1) that the charge is defective, in: that it is not alleged that it was part of the scheme' that it be', ¢'ffe9ted by open:ing or indtitlg to cbrrespondenceby means of esta,blishment; and, if be un'tenlible,(2) that the sch'effie alleged, although designed' to be by means of the to diselose a fratl4 <me. ofthe bffense are thredn number: (1) The scheme t¢ (lefrau<lj (2) an'essential part· 6flbe scheme, the opening, or design corresp'on4ence by maili (3)iriexecution of the scheme,the de": p6sit in or fukiQg from the post-offi,ce' a letter. U. S. 'Y.Wootten, 29 702;U, S.v. Hoeflinge:r, 33 F,ed: Rep. 469.. , '. ':,"'",. '.' ,.' .. The purp?se,oIt.he law is to prohibit lent schemes. It IS not clear why the to use the mall,s was ,required as ,a constituent element of the offense.' statute me'asurably defelits its purpose, 'since the mail may be in aid ,'of fraudj
UNITED STATES 'lJ.
ulent practices-if ,the intent so to. use was ,J;lotpart ofthe scheme to fraud. But ita .lei .mpta est, and. it musfbe administered as declared. The pleading an offense under the statute, was considered in U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct. Rep. 571. It was there ruled tbat all the material facts and circurYlstances embraced in the definition of the offense must that no essential element of the crime can be omitted without destroying the whole pleading; that the omission cannot be supplied by intendment or implication; and that the charge must be made directly, not inferentially, or by way of recital. Testing the pleading here by the rule so declared, I am of opinion that the objection to 'the first two counts of this indictment is well sustained. The assertion in the pleading that it was the intent of the scheme to make certain false representations through newspaper advertisements, "to be sent of the United States," is clearly inthrough sufficient to chll:rge the second element of the offense. It is a statement of the medium through which the newspapers were to have circulation, but falls of that the scheme comprehended a design that it should be effected by m,eans of the post-office establishment in opening victim of the fraud. The pleader correspondence with the would inferdesign from a possible result. That is not permitted,design an element of the crime. After directly charging a scheme to 4e(raud, t1:le pleading states, substantially the language of that the defendant, "having theretofore -devised, as aforesaid, the afQrellaid scheme to delraud, to be effected by Qpening correspondence with . ' by means of the post-office establishment of the United States, etc., "did deposit,'; etc. It is not objectionable to charge the design to open correspondence through the mails in the the statute, without further expanfi.ion, because those words in and of themselves fully and without ambiguity declare the nature of the design. U. S. v. Oarll, 105 U. S. 611. But the charge, though couched in the language of the statute, must be made direct)y, not left to inlerence, nor stated by way of recital. Herein the pleading is defective. It is not charged directly that the scheme embraced the design to use the mails for its accomplishment, and the statement, as made, is merely hy way of recital. This conclusion makes it unnecessary atthis time to consider the second objection urged to these counts of the indictment, that the scheme does not constitute a fraud within the ofthe law. The third count states the scheme to defraud as declared in the other counts, and then charges that in conducting, promoting, ca.rrying on, and executing said scheme through correspondence by mail the defendant u,sed, assumed, and requested to be addres8ed other than by his own proper title, name, and address, to-wit, by the fictitious, fa.lse, and assumed. title of "Gun Wa." This count is framed under subsection 2 of the as'amended. The subsection forbids the.6se ofan name in the execution of any scheme or device mentioned in the principal section, or any other unlawful business whatsoever. ;Failingto properly allege a scheme within the intendment of the principalsection, the count under consideration cannot be sustained, unless it Clloil be held tostatellil
unlawful business.. Without stopping now to inquire whet}.er the word "business II is here employed in the sense of open and regulare.-nployment, or comprehends an isolated unlawful transaction, it is suffi(Jient to say that the count charges no business of any kind. It avers the devising of a scheme, embracing the design to engage apartments to be fitted up in keeping with the role to be assumed,-that of a Chinese physician; the contemplated assertion of the possession and curative power of certain Chinese herbs, and thereby to fraudulently procure the money of others. But all this rested in intent. An unexecuted scheme is not a business. The court is not advised by the pleading that any part of the scheme was e\'er executed in whole or in part; no apartments engaged, fitted up·as designed, or opened to the public; no assertion of the profession to be assumed; no assertion oi the possession or curative power of rare Chinese herbs, or of any act or series of acts that might fitly be. characterized as a business. The single overt act asserted is the ·assumption of and a re. quest to be addressed by a false and fictitious title or name. That act must, however, be done in the conduct of a business, and of a business which isuulawful, if the offense, as charged, can be sustained under this subsection. The business must be specifically charged, and its unlawful character disclosed, for it is not an offense within the statute to assume a fictitious name in a lawful business. In the absence of direct averments, a business or its character may not be inferred from the letterset forth. U. S. v. Hess, supra. The count was intended to charge the offense in execution of a scheme mentioned in the principal section, and not of other unlawful business comprehended in the subsection. However intended, it fails to charge an offense in respect of either. The demurrer will be sustained.
(Otrouit Oourt. E. D. Wisconsin. March 28.1891.)
PATENTS FOR INVENTION-COMBINATION-PATENTABILITY.
A device consisting of a combination of several well-known separate elements, each of which serves the use to which it has previously been applied, and, in conjunction with the other parts, operates not differently, and pel"forms no othel" function, and in which no new result is the product of their co-operative action, is not invention, but falls within the range of mere mechanical skill.
Claim 1 of letters patllnt 204,882, June 18. 1878, to George G. Campbell. of a catchbasin covel", (',onstructed with slanting front, with grate base, and raised stop or partition, as described, is illvalid, as being an aggregation of well-known separate elements, eaoh opel"ating in its old way. in whioh no new result is the produot of their oo-opel"ative action.
In Equity. Bill fOf injunction. a. T. Benedict, for complainants. G. Underwood. for defendants.