offense is the improper use of the mails. This must be pleaded clearly and specifically as to time, place and circumstances.3 The letter mailed should be set forth in full, if that is practicable, or else identified and described as fully as the circumstances will permit.5 It is not necessary to allege how the letter would aid, or was intended to aid, in the execution of the scheme. Knowledge of the falsity of the alleged fraudulent statement or recklessness in making it, should also be set by the post-office establishment of the United States, or shall take or receive any such therefrom, whether mailed within or without the United States, or shall knowingly cause to be delivered by mail according to the direction thereon, or at the. place at which it is directed to be delivered by the person to whom it is addressed, any such letter, postal card, package, writing, circular, pamphlet, or advertisement, shall be fined not more than one thousand dollars, or imprisoned not more than five years, or both." Criminal Code, § 216, March 2, 1889, c. 393, § 2, 25 Stat. 873. March 4, 1909, c. 321, § 216, 35 Stat. 1131, Comp. St., § 10386. "Whoever, for the purpose of conducting, promoting, or carrying on, in any manner, by means of the postoffice establishment of the United States, any scheme or device mentioned in the section last preceding or any other unlawful business whatsoever, shall use or assume, or request to be addressed by, any fictitious, false, or assumed title, name, or address, or name other than his own proper name, or shall take or receive from any post-office of the United States, or station thereof, or any other authorized depository of mail matter, any letter, postal card, package, or other mail matter addressed to any such fictitious, false, or assumed title, name, or address, or name other than his own proper name, shall be punished as provided in the section last preceding." See Wilson v. U. S., C. C. A., 190 Fed. 427; Lemon v. U. S., C. C. A., 164 Fed. 953; U. S. v. Bartholomew, C. C. A., 177 Fed. 902; Horn v. U. S., C. C. A., 182 Fed. 721. 2 Whitehead v. U. S., C. C. A., 245 U. S. 385, 388. 3 U. S. v. Wupperman, 215 Fed. 135; Coleman v. U. S., C. C. A., 223 Fed. 590; U. S. v. Dale, 230 Fed. 750. An averment that letters were placed in a Post Office of the City of New York was sustained by evidence, that the letter was delivered at its address enclosed in an envelope postmarked "New York," as against the objection that it might have been deposited in a sub station or in a box on a lamp post. Farmer v. U. S., 223 Fed. 903. Where an indictment charged in separate counts the mailing of letters upon a different date in furtherance of the same scheme, an acquittal of an intent to defraud is not inconsistent with the existence of a fraudulent intent of when the letter was mailed. Tucker v. U. S., C. C. A., 224 Fed. 833. 4 U. S. v. Wupperman, 215 Fed. 135. 5 Ibid. 6 Ibid. forth that defendants acted fraudulently, or willfully, is not 'indispensable. The person whom it was intended to defraud should be named, if that is practicable; 10 but when the scheme's aim was to entrap members of a class, it is sufficient to name the class 11 and the omission of the averment of the incorporation of a person named unless objected to by a special demurrer, is not fatal to the indictment.1 12 When the intent to defraud is clearly charged, the pleader need not aver that any one was actually defrauded.18 The fraudulent scheme must be described.14 Since it is subsidiary to the offense, it need not be set forth with the technical details required when obtaining money or goods under false pretenses or swindling, or a like crime, is the subject of the indictment.15 7 Farmer v. U. S., 223 Fed. 903; Bettman v. U. S., C. C. A., 224 Fed. 819. An averment, that part of a financial statement was intended by defendant to be, and was, false and fraudulent, is sufficient in this respect. Ibid. 8 Moffatt v. U. S., C. C. A., 232 Fed. 522. 9 Holsman v. U. S., C. C. A., 248 Fed. 193. 10 In McClendon v. U. S., C. C. A., 229 Fed. 523, held, "where an indictment for using the mails in the execution or attempted execution of a scheme to defraud alleged that a letter mailed in such execution or attempted execution was inclosed in an envelope, a further description of which envelope was to the grand jury unknown, and then set out the letter contained in the missing envelope, it was not defective because of the failure to allege to whom the envelope was addressed.'' 11 Finnegan v. U. S., C. C. A., 231 Fed. 561. 12 McClendon v. U. S., C. C. A., 229 Fed. 523. Fed. Prac. Vol. III-31 13 Whitehead v. U. S., C. C. A., 245 Fed. 385, 388: "The consummation of the crime is not dependent upon the success of the scheme. The crime is complete before the letter designed to mislead or otherwise used in carrying out the scheme, is received by the intended victim. The person addressed may have the shrewdness to detect the fraud; or, being mislead, he may be in such financial condition as to be proof against fraud. Neither fact will affect the crime. Neither the mental nor financial condition of the person against whom the fraud is directed, nor any action on his part or failure to act, will increase or diminish a crime completed when, a scheme to defraud having been devised, the mails have been used in an effort to make it effective." 14 U. S. v. Wupperman, 215 Fed. 135; Spear v. U. S., C. C. A., 228 Fed. 485; U. S. v. Schwarz, 230 Fed. 537; Underwood v. U. S., C. C. A., 264 Fed., July 20, 1920. 15 Whitehead v. U. S., C. C. A., 245 Fed. 385, 388. A general averment that defendants devised a scheme to defraud is insufficient without descriptive details showing the character of the scheme, and that it was reasonably calculated to effect the wrongful design.16 The indictment need not mention all the auxiliary devices.17 A description of the scheme as one by which the defendants would "pretend" certain things is sufficient.18 There is no need of an allegation that the scheme was to be effected by the use of the mails.19 An indictment alleging that several persons entered into a scheme to defraud by use of the mails may justify a conviction of some, and an acquittal of the others, without a fatal variance.20 § 506b. Indictments for mailing or expressing obscene matter. An indictment for mailing or expressing obscene matter 1 must 16 Spear v. U. S., C. C. A., 228 Fed. 485; U. S. v. Schwarz, 230 Fed. 537; Underwood v. U. S., C. C. A., 264 Fed. 17 Whitehead v. U. S., C. C. A., 245 Fed. 385, 390, where the contract pleaded recited that an application was a part thereof, and the indictment omitted such application. In Colburn v. U. S., C. C. A., 223 Fed. 590, held that a description of land as 'worthless' was not repugnant to a subsequent statement that such land was not worth to exceed $2 an acre. Bonfoey v. U. S., C. C. A., 252 Fed. 802, that proof of a trust deed instead of a mortgage the latter word being alleged in the indictment was a fatal variance. 18 Mounday v. U. S., C. C. A., 225 Fed. 965; Ruthven v. U. S., C. C. A., 222 Fed. 70. 19 Tucker v. U. S., C. C. A., 224 Fed. 833; Smith v. U. S., C. C. A., 267 Fed. 665. 20 Farmer v. U. S., C. C. A., 223 Fed. 903. § 506b. 1 Criminal Code, § 211, U. S. R. S., § 3893, amended, July 12, 1876, c. 186, § 1, 19 Stat. 90, Sept. 26, 1888, c. 1039, § 2, 25 Stat. 496, and May 27, 1908, c. 206, 35 Stat. 416. March 4, 1909, c. 321, § 211, 35 Stat. 1129. March 4, 1911, c. 241, 2, 36 Stat. 1339, Criminal Code, § 245, as amended, Act of June 5, 1920, Ch., Comp. St., 88 10381, 10415. These statutes are constitutional. "Every obscene, lewd, or lascivious, and every filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character, and every article or thing designed, adapted, or intended for preventing conception or producing abortion, or for any indecent or immoral use; and every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for preventing conception or producing abortion, or for any indecent or immoral purpose; and every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information directly or indirectly, where, or how, or from whom, or by what means any of the herein before-mentioned matters, articles, or things may be ob describe the article or paper objected to, so that the defend tained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means conception may be prevented or abortion produced, whether sealed or unsealed; and every letter, packet, or package, or other mail matter containing any filthy, vile, or indecent thing, device, or substance; and every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can be, used or applied for preventing conception or producing abortion, or for any indecent or immoral purpose; and every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing, is hereby declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post-office or by letter carrier. Whoever shall knowingly deposit, or cause to be deposited for mailing or delivery, anything declared by this section to be nonmailable, or shall knowingly take, or cause the same to be taken, from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined not more than five thousand dollars, or imprisoned not more than five years, or both. And the term "indecent'' within the intendment of this section shall include matter of a character tending to incite arson, murder, or assassination. "Whosoever shall bring or cause to be brought into the United States, or any place subject to the juris diction thereof, from any foreign country, or shall therein knowingly deposit or cause to be deposited with any express company or other common carrier, for carriage from one State, Territory, or District of the United States or place noncontiguous to but subject to the jurisdiction thereof, to any other State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, or from any place in or subject to the jurisdiction of the United States, through a foreign country, to any place in or subject to the jurisdiction thereof, or from any place in or subject to the jurisdiction of the United States to a foreign country, any obscene, lewd, or lascivious, or any filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character, or any drug, medicine, article, or thing designed, adapted, or intended for preventing conception, or producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, of notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of the hereinbefore mentioned articles, matters, or things may be obtained or made; or whoever shall knowingly take or cause to be taken from such express company or other common carrier any matter or thing the depositing of which for carriage is herein made unlawful, shall be fined not more than $5,000 or imprisoned not more than five years, or both."' ant may have a fair opportunity to prepare for trial 2 and to make the judgment a complete defense to a second prosecution of the same offense. When the objectionable article is voluminous, or contains such indecent or obscene language that it is not proper to spread it upon the records of the courts, it need not be pleaded at length; but in such a case the defendant is entitled to a bill of particulars if he moves for one. The indictment need not refer to the whole publication, of which obscene pictures, the subject of the crime, form a part; 7 nor need it charge that the book, periodical or newspaper in which the objectionable matter appears is obscene. It is the better practice to aver that defendants were aware of the character of the publication; but such an objection is waived unless raised by special demurrer.9 The person or persons to whom the objectional matter was mailed or sent should be named in the indictment; unless they are unknown to the grand jury, when an allegation of such ignorance is sufficient.10 It has been held sufficient to allege. that defendants deposited in the Post Office the objectionable matter, if properly described, to be transmitted by the Post Office establishment to such persons without stating that the newspapers were addressed to any particular person.11 A count is not duplicitous which charges the mailing of a writing which is obscene and also gives the prohibited information; 12 nor one which charges the deposit at the same time of a number of obscene books in the mail for delivery to different persons; 13 nor which charges that he "did deposit 2 Tyomies Pub. Co. v. U. S., C. C. A., 211 Fed. 385. 3 Ibid. Coomer v. U. S., C. C. A., 213 Fed. 1. 4 U. S. v. French, 57 Fed. 382. 5 Rosen v. U. S., 161 U. S. 29, 40 L. ed. 606; Price v. U. S., 165 U. S. 311, 41 L. ed. 727; Dunlop v. U. S., 165 U. S. 486, 41 L. ed. 799; Bartell v. U. S., 227 U. S. 427, 57 L. ed. 583. 6 Coomer v. U. S., C. C. A., 213 Fed. 1; infra, § 522. 7 Ibid. 8 Tyomies Pub. Co. v. U. S., C. C. A., 211 Fed. 385. 9 Ibid. 10 Magon v. U. S., C. C. A., 248 Fed. 201. 11 Ibid. 12 Burton v. U. S., C. C. A., 142 Fed. 57. 13 Clark v. U. S., C. C. A., Clark C. C. A., 211 Fed. 916. |