UNITED STATES 11. HARRIS.
The ground of said decision, not expressly stated therein, must be the principle I 'have already enunciated,-that, where responsibility grows out of an official duty, the manner and measure of performance must be left to the determination of the officer upon whom the responsibility rests. Therefore, while the court, under suitable circumstances, may allow the amendment of a return, it in any case direct what the return shall be. Motion denied.
UNITED STATES v. HARRIS at
(District Court, S. D. California. Nov. 30, 1894.) No. 628USING THE lIbIL8 TO DEFRAUD-INDICTMENT. An indictment under Rev. St. § 5480, for
using the malls as a meanlJ to defraud, must directly allege that the fraudulent scheme Itself Included the intended use of the United States mail in its execution.
Emil Harris and O. D. Platt were indicted for using the mails as a means to defraud. The court directed a verdict of not guilty, for defects in the indictment George J. Denis, U. S. Atty. Henry T. Gage and Stephen M. White, for defendant Harris. W. T·.Williams and W. A. Cheney, for defendant Platt. District Judge. One of the constituent elements of the offense denounced by the statute upon which the indictment in this case is based is the intended use of the United States mail in aid or furtherance of the fraudulent scheme. It is therefore essential that the indictment allege directly, and not inferentially or by way of recital, that tlle scheme included the intended use of the mail. U. S. v. Hess, 124 U. S. 483, 8·Sup. Ct. 571; Brand T. U. S., 4 Fed. 394; U. S. v. Plemtuing, 18 Fed. 908; U. S. v. Wootten, 29 Fed. 703; U. S. v. Finney, 45 Fed. 42; U. S. v. Smith, 45 Fed. 562; Weeber v. U. S., 62 Fed. 740. From a careful examination of the indictment, I am unable to find any direct allegation that the fraudulent scheme that the defendants are therein alleged to have devised included the use of the post office of the United States in its aid or furtherance. It is alleged in more than one place in the indictment that, in pursuance of the alleged scheme to defraud, the defendants placed and ca11sed to be placed in the United States post office at Los Angeles the letter set out in the indictment, and also that the letter sO deposited. was to .further and effect the object of the conspiracy, which is alleged to be "to misuse the post-office establishment of the United States by devising a scheme to defraurl." In -all of this there is no allegation that the fraqdulent scheme itself incllldedthe intended use of the United States mail, which element, as has been said, is an essential constituent of the statutory offense. For this reason the court is -obliged to instruct the jury to render a -verdict: of not guilty.
UNITED STATES v. LONG. (District Court, S. D. california. May 20, 1895.) No. 721.
USING MAILS TO DEFRAUD-INDICTMENT.
An indictment under Rev. St. § 5480, alleging that defendant devised a fraudulent scheme "to be effected by opening correspondence · · · by means of the post office establishment," though following the language of the statute, is defective, as faUing to directly allege that defendant, as a part of his 'fraudulent scheme, designed its accomplishment through the instrumentality of the post office.
Benedict Long was indicted under Rev. St. § 5480, for using the United States postal establishment as a means to defraud. Defendant demurred to the indictment. George J. Denis, U. S. Atty. J. V. Hannon, for defendant. WELLBORN, District Judge. There are three counts in the indictment, but, so far as concerns the demurrer, they are alike, and may be considered together. The objections urged to the indictment are that the averment as to the devising of the fraudulent scheme alleged against the defendant is by way of recital, not direct statement, and that there is no charge Whatever, unless it be by implication or inference, that the defendant intended, as a part of such scheme, to effect the same by opening correspondence through the postal establishment of the United States. The averment in question is as follows:
"That Benedict Long, late of the Southern district of california, heretofore, to wit, on the 1st day of January, in the year of our Lord one thousand eight hundred and ninety-five, having devised a scheme to defraud one .J. W. Strickler, to be effected by opening correspondence and communication with said Strickler by means of the post-office establishment of the United States, · · · in the furtherance and execution of said scheme, did knowingly, Willfully, unlawfully, and feloniously place and cause to be placed in the post office of the United States at Vista, San Diego county, California, a certain letter." etc.
Section 5480 of the Revised Statutes provides as follows:
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, shall, in and for executing such scheme or artifice, place or cause to be placed any letter · · · in any post office of the United States to be sent or delivered by the said post office establishment, or shall take or receive any such therefrom, such person so misusing the post offiCtt establishment shall, upon conviction, be pUnishable," etc.
"If any person, having devised any scheme or artifice to defraud to be
Under this section the courts have repeatedly held that, to constitute the offense therein defined, three things are necessary: First, a scheme to defraud; second, as an essential part of the scheme, an intention to effect the same by opening correspondence through the mail ; third, the depositing of a letter in the mail or taking one therefrom, in execution of such scheme. Stokes v. U. S., 15 Sup. at 617; U. S. v. Smith, 45 Fed. 561; U. So v. Wootten, 29 Fed. 702.