UNITED STATES V. FINml:Y.
cise language of this special clause. In one sense they are certainly articles which are manufactured,-articles which may be classed as wares,but still they are forgings of iron and steel; and it seems to me, therefore, that I should rule, for the purposes of this case, that the plaintiff's contention is right, and that the articles were dutiable only at the rate of 2! cents a ,pound , instead of 45 per cent. ad valorem, under the omnibus clause. I will rule that the language of the special clause is broad enough to cover any article that is made with substantial completeness by the process of forging. There does not seem tobe anything here designated by the term "forging" in commerce as distinct from the special purpose for :Which the forging is to be used, like shafting, or some article of that kind. The evidence here is not sufficient to show that the articles may have other designations; and, besides, in this case scythes and pincers and grass-hooks may be "forgings," within the meaning of the specia1 clause, although they may have the other designations. ' The jury were then directed to bring in a verdict for the plaintiiffor $104.35, with interest and c o s t s . '
(Dtatrict Court, E. D. MiB8OUrt, E. D. November Term, 1800.)
FRAUDULENT USE OJ' '1'JIE lbILB-DEPOSITB BY AGBNT-MIUPPROPRUTION.
Under Rev. St. U. 8. 15480, the nse of the ·mails for fraudulent purposes, a person may be convicted who, representing himself to be the president 01 a pUblishing company, falsely pretends by letters and circ:Ulars that he desires to employ agents to sell books, when in fact his wle purpose is to induce the agentS to make deposits of money. which he intends to appropriate.to his own use. ;
S. SAME-INTENT. · Defendant's intent Is to be determined by Inference from all the facts and cumstances In the case,inciuding evidence of his failure to return deposits secured from various persons. 8. 8AME-J'BAun-AssUMED NAME. The mere fact that defendant' carried on' the business under the name of the "Union PUblishing Company" 18 not of itself fraudulent.
At Law. Indictment for using the mails to defraud. Goo. D. Reynolds, U. S. Dist. Atty. O. H. Krum and D. P. Dyer, for defendant.
THAYER, J. Gentlemen of the jury, I will read to you the materiai part of the law upon which this indictment is founded. It is section 5480 of the Revised Statutes of the United States, and the material part is as follows: "If any person, having devised ... ... ... any scheme to defraud, or effected' by either opening, or intending to open, correspondence or communication with any other person, ... ... .... by means of the pos.t-office establisllment of the United States, or by inciting sucb other person to oped communication with the person so devising or intilnding, shall, in and for
execlltingsuch scheme, "'. '" . ,'" place any letter or packet in any postoffic;:e of the states. or take or receive any therefrom, suen person. so misusing the ,post-office establishment, .shall be punishable by fine. "etc.
Now, 'to 'warrant a conviction .in this case, there are two leading facts prosecutionJ,llust establisp to your satisfaction beyond any wh,ich reasonable doubt. In thejifBt place, it must be mAde to appear that at and before the mailing of the letters to A. S. Norfleet and Coy Littrell, 'in the indictment, the p(lfendant had devised the scheme to be effected by using tll!3 m:ail, that is described in the indict,. ment;. and, Qecandly, it mustbe,made to appear that, in execution of such the letters ,to, Norfleet and Littrell, described in the in the post-office of the United States, at St. Louis,. Mo. The fact that the letters in question were so deposited in the post-office atS,t. .Mo. the defendant is admitted, so that the only question you, determine is whether at and before the mailing of the ·letters inq\lestion, the defendant had devised a !3c};leme to defraud :such ,as;is in the indictment, and whether the mailing of the two letters was an act done in execution'ofsuchfraudulent scheme. Now let us see what is the nature of the scheme to defraud, as the same is described in the indictment. The bill, as I construe it, alleges, substantially, that the scheme consisted of representations made, and to be made, by the by letters or circulars, through the medium oflthe United States mail,that he was the president of the Union Publishing Company, and that the publishing company was a manufacturer and publisher 01 standard subscription books and bibles, for the sale of which to employ agents; the iptent of defendant being to persons, by means of such representations, to believe that .the publishing companY.'d.esiredtoemploy agents, and that the persons Addressed would be employed as such agents, and in consideration thereof to advance to the publishing company the sum of $25 for an agent's outfit, which the defendant intended to appropriate, without supplying the, outfit or filling such orders as such agents might take. As the scheme is described in the indictment, it is the opinion of the if itia found to bea scheme, as charged, it was fraudulent because defendant pretended to desire to employ agents to sell books for the publishing company when in point offaet he had no such desire, and had 'no intention of O1:ders as they might tl;tke after their appointment, but only intended to secute a deposit of $25, and to appropriate the ll!l:me tohia own use. 'Hence I charge you to inquire particularly,__FJirBt, whether the pretense of a desire to empldy;agents to canvass for the sale of books was in reality a false pretense, lMde for no other purpose than to induce persons to advance to defendaht: '25; and,8econdly, whether' defendant's real purpose was. to appropriate such moneys to his own use, without rendering any equivalent fOrtbemoney'so received.. '. If, under tpetestimony in the case, you anllwer!both of these. questl.qns jb the affirmative, you will be l1-uthorized t.o. find that the scheme wns fraudulen,t, and in that event you may return .. verdict of: guilty on thefil'stand' second. counts df the indictmentj bui
43 if, on the other hand, yO'tl find that the: defendant was engaged in the faith desired to employ agents to insale oi books, and. ihat herin crease his sales, and that he intended to fill such ordera as they might obtain, then you should acquit the accused. If yon find that the defendant was in good faith engaged in the books, and desired to employ agents to increase his sales, as last indicated,-tliat is tOS9.y, if you find that the representation that he was engaged in the sale of books, and desired ·to employ agents, was an honest and truthful one,' made with intent to secure agents, and to fill such orders as such agents might from time to time secure,-then the court instructs you that the defendant is not guilty of a crime merely because he received deposits of money that he did not return, or because he represented that the Union Publishing Company was a manufacturer and publisher of subscription books when such was not the fact, or becalllle he failed to furnish an outfit to Norfleet or Littrell, or to fill orderS for books. If the defendant was engaged in the book business, he had a perfect right to make such contracts with proper, if the same were mutually agreed upon by agents as he the parties, and be had a perfect right to ask for a deposit, and to agree to the circumstances aod conditions under which it should he rElt;Urried'; You will therefore regard all the evidence which the court has admitted touching the deposit of money by various persons, arid defendant's failure to return' the same, and touching his failure to supply outfi.ts and books, and the evidence concerning his dealings with other· agents tom Norfleet and Littrell, as having been admitted by the. court solely for the purpose of enabling you to determine intelligently whether the was carrying On· business as a book-dealer in good faith or in hall faith, that is to say,'whether h(l was carrying on business merely as a ili,eans of obtaining deposits by agents, which he intended to convert to his own US(l, without rendering any equivalentj and you must determine what the defendant's intent was in this regard by inferen¢e fromallthl;! facts and circumstances in the case that have been provell, to yoursatisfaQijon. In this connection I will say, gentlemen, that it was not fraudulent for the derelldant to carryon business under the name of the "Union Publishing Company" rather than in his own name; in other words,1 he had a. perfect right, ifhe saw fit, to earry it·on under that Mme. 'was nothing wrong. inthal act, considered -by itself. And, in conClusion I will add that .the presumption of law is that the defendant is'inn<>cent of the fraudulent intent imputed to him, and is also innocent of thecrim&' imputed to himj prosecutiol1must provetha1rau<iulent intent' imputed to him, and the crime, beyond' any reast>nable doubt.lfithll8 failed to prove the OflElDse with'such degree of certainty, yOllwill of acquitthe odf, UpOll' a fair <lOnsideration of all tbefestimony,' you entertain:a reasonable doubt of his guilt, you DlUst the' benefit of such and return a v,er4ict of"not guilty." In'any event, y:ou will-render a verdict of not guilty.Qo the of. thEl.inPictJlile.nt., 'fhe QOurtis of the opinion, for rea SODS unnecessary to be ;stated". that yousbould not find;a, verdict of glii1ty on the third count, whatever; you otbercounts. . --I").,
I have been asked to charge the jury" that the contract read in evidence between the Historical Publishing Company and the defendant, Finney, is a contract of sale, made, from every legal stand-point, on the basis of mouey paid by the company to the defendant." I have no objection, to stating to you that such is the case. There is no doubt that the contract in question was made upon a perfectly valid consideration. The substance of what I have said I have reduced to writing, and you may take it to the jury-room, also the indictment.
UNITED STATES tI. EDGAR.
(otrcuU Court. E. D. Missouri, E. D. January 29, 1S91."
The01feusedescribed in sections 1 and 3 of the act of February 26,1885, (23 U. S. St. m,)'consists in prepaying, or otherwise assisting or encouraging the importation or IQ.igration of an alien, knowing such alien to be at the time under contract to perform labOr or service in the United States. Following U. S. v. CraiCl, 28 Fed. Rep. 799. . .
SA.ME-M».4'NING OF WORDS "CONTRACT" OR "AGREEMENT. "
FOR ALIEN L A B O R . .
The words "contract" or "agreement," used in the statute, mean an enforceable contract, express or implied. A letter was written by an alien in England to a person in the United States, saying that the writer had heard that the party addressed was in want of men to do a certain kind of wbrk, and, if convenient to send passes, himself and another alien would "oorne (lut," but contained no eX\lreas promise to do work in consideration of receivin'f passes. To. this letter a thlrd party, to whom the same was handed, replied: " have this day bought two tiokets for you; * * * take this letter to R. S. & Co., " * * and get tickets. * * * We can give you steady work. * * * Tickets wlU not be good after July 18th." The letters being the onlyevidence of a contract to perform labor or service in the United States, existing when the transportation was prepaid, heUi, that they were insufficient to establish a contract existing that date.
to recover a penalty for prepaying the transportation of two aliens from
This is a s.uit
section 8, Act Feb. 26,1885, (28 U. S. St. 883,)
Bristol, England,to the United States, such aliens being at the time, as i.t is claimed, under a contract to perform labor for the defendant in the United .f3tates.The petition, after alleging the prepayment of the trans" portation, w4He the aliens were under a contract to perform labor in the .tfurther avers that "said contract and agreement between United entered into between them· by letters fordefendant and said aliens warded delivered by mail, which letters are as follows: "No. '16 AIKEN ST., BARTON HILL, BRISTOL, April 11,1890· . From Mr. I. Bovee to M1'. ·f11'all, the manager-:-DEAR SIR: I have heard that you are in want of men to work on the spilter furnaces l: and one of my fellow workmen would like to come out hear as the workshear is very slack if it would be convenient for you to send us a pass each we would