been then repeating what his associates told him and what he believed to be true was a mere subterfuge.

We do not see that this affirmance, as to McDonald, is inconsistent with our treatment of the superficially similar situation disclosed in the Sparks Case, in which Sparks was awarded a new trial. The Sparks Case, upon its facts, is typical of those in which the guilty intent must be determined by careful and intelligent consideration of the evidence tending both to affirm and to deny such intent, and the case against Sparks is, therefore, to be classified with the case against Hendrey upon the present record, while the case of McDonald is typical of. those in which the intent to deceive cannot be seriously doubted, and in which we are therefore justified in concluding that a failure to give complete instructions on the subject of intent was not prejudicial.

[8,9] Some other matters require mention. Respondent Toenges (one of those against whom the case was discontinued) had been in the employ of respondent Bonds' bank in Kansas City, and then was employed by Hendrey in his Memphis bank, and later acted as cashier of the American Trust Company. Apparently he was claimed to be a sort of connecting link between Hendrey and the American Trust Company. Testimony was admitted regarding a supposed embezzlement by Toenges while he was employed in the Kansas City bank. Not only was this foreign to any of the issues in the present case, and distinctly prejudicial, but the testimony on the subject came from a government witness, who knew only what Bonds had told him, and what he had seen in entries made by some one on the books of the Kansas City bank. The statement by Bonds was made after the scheme to defraud involved in this indictment was at an end, and, even if the rule of evidence in conspiracy cases is to be applied, such a statement was hearsay.

[10] Evidence was received as to the contents of the books of the Memphis bank of which Hendrey was president. This bank was a corporation, and the contents of the books of the corporation could not be put in evidence in a criminal prosecution against the president, without a more direct showing of his personal responsibility for the bookkeeping than we observe here. Worden v. United States (C. C. A. 6) 204 Fed. 1, 9, 122 C. C. A. 315.

For the guidance of the court and counsel upon another trial of Hendrey, we state our conclusions upon other errors alleged, but think there is no sufficient object in elaborating them. We find no error in the matters presented by respondents' counsel in their brief under the headings II, III, and IV. Some of the items of evidence, grouped under V as erroneously admitted, seem to us rather remote, if relevant at all; but we see nothing so far beyond the limits of the discretionary judgment which the trial court must exercise on that subject, and so substantially harmful, that we can call it prejudicial error.

The general legal principles applicable to the questions in this case. have been so fully and so recently discussed by us in Bettman v. United States, 224 Fed. 819, 140 C. C. A. 265, Tucker v. United States, 224 Fed. 833, 140 C. C. A. 279, Hendrey v. United States, 233 Fed. 5, 147 C. C. A. 75, and Sparks v. United States, supra, that it seems unneces

sary to repeat here what has been there said. We have only undertaken to apply these principles to the facts of this case.

The verdict and sentence against Hendrey are reversed, and the case, as to him, remanded for a new trial; the sentence upon McDonald is affirmed.

MCKELVEY et al. v. UNITED STATES.

(Circuit Court of Appeals, Ninth Circuit. May 7, 1917.)

No. 2807.

1. CONSPIRACY 43(9)—INDICTMENT-CONSPIRACY TO COMMIT CRIME. Criminal Code (Act March 4, 1909, c. 321) § 37, 35 Stat. 1096 (Comp. St. 1916, § 10201), provides that if two or more persons conspire to commit any offense, and one of them does any act to effect the object of the conspiracy, each shall be fined, etc. Section 215 (Comp. St. 1916, § 10385) provides that whoever, having devised any scheme to defraud, etc., shall, to execute it, place any letter in any post office, etc., shall be fined, etc. An indictment charged that defendants conspired to commit an offense under section 215, and that it was a part of such conspiracy to accomplish and attempt to accomplish it by means of the mails, and to mail letters to the persons intended to be defrauded, and that two described letters were mailed in pursuance of the conspiracy. Held, that the indictment sufficiently charged conspiracy to use the mails to effect the conspiracy. [Ed. Note.-For other cases, see Conspiracy, Cent. Dig. §§ 86, 96.] 2. CONSPIRACY 43(9)-INDICTMENT CONSPIRACY TO COMMIT CRIME.

The indictment was sufficient as against the objection that the charges that defendants deposited letters in the post office department were charges of overt acts, and the only charges that the post office was used in executing the scheme to defraud, and that these charges could not be used to strengthen the charge of conspiracy, since the overt act which completes a conspiracy is a part of the conspiracy.

[Ed. Note.-For other cases, see Conspiracy, Cent. Dig. §§ 86, 96.] 3. CRIMINAL LAW 371(1)—EVIDENCE-OTHER OFFENSES-INTENT.

On a trial for conspiring to commit the offense of using the mails in furtherance of a scheme whereby persons were to be defrauded by blackmailing suits and threats thereof, evidence as to suits instituted by defendants about the same time and of like character to those involved in the indictment was admissible to show intent, when properly limited by the court to this purpose.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 830, 831.] 4. CRIMINAL LAW 1169(1)—APPEAL-HARMLESS ERROR-ADMISSION OF EVIDENCE.

The admission of evidence not prejudicing defendants was not reversible

error.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3130, 3137.] 5. CRIMINAL LAW 829(2)-INSTRUCTIONS COVERED BY THOSE GIVEN "CONSPIRACY."

On a trial for conspiracy to commit a crime, the court charged that a "conspiracy" was a combination between two or more persons to do a criminal or unlawful act, or a lawful act by criminal or unlawful means; that there could be no conspiracy where an individual acted by and for himself; that a merely mental purpose could not justify a conviction, a common design being of the essence; that a person, to become a party to a conspiracy, must combine with some one else to effect its object by For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 241 F.-51

means agreed upon; that where circumstantial evidence was relied upon to establish the conspiracy, or any other fact, it was not only necessary that the circumstances concur to show the existence of the conspiracy, or other fact, but that it must be inconsistent with any other rational conclusion; and that, if the evidence could be reconciled either with innocence or guilt, the law required that defendant be given the benefit of the doubt, and that the theory of innocence be adopted. Held, that these instructions sufficiently covered a requested instruction that it needed something more than proof of mere passive cognizance of fraudulent or illegal action of others to sustain a charge of conspiracy; that before the jury could convict one defendant they must find that he did something more than entertain a mere passive cognizance, and they must find from the evidence beyond a reasonable doubt that he did some act or made some agreement showing an intent to participate in the conspiracy.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2011.

For other definitions, see Words and Phrases, First and Second Series, Conspiracy.]

In Error to the District Court of the United States for the Southern Division of the Southern District of California.

Charles S. McKelvey and another were convicted of conspiracy, and they bring error. Affirmed.

Indictment under Act March 4, 1909, c. 321, § 37, charging plaintiffs in error with a conspiracy to commit acts made an offense by section 215 of the same act; the offense being a conspiracy to cheat, wrong, and defraud certain persons named in the indictment, and to use the United States mail in furtherance thereof. Verdict of guilty, upon which the court entered judgment, imposing a fine of $2,500 upon each of the plaintiffs in error, and sentencing plaintiff in error Stevens to imprisonment in the county jail for six months. Plaintiffs in error at the time of the indictment were attorneys at law in Los Angeles, Cal., having adjoining offices, both using a common reception room, and employing a stenographer who was required to do the work of each. Plaintiff in error Stevens had been appointed by the superior court of California to represent as guardian ad litem and defend the minor, Irene Marie Brown-Levy (now Mrs. Van Houten) in a divorce proceeding brought by her then husband. While consulting with Stevens concerning her defense to the divorce proceeding, Mrs. Levy disclosed to him certain illicit relations that existed between herself and certain other young women, on the one part, and certain men who resorted to a place known as the Jonquil Apartments, in Los Angeles, for such purposes. It appears that at the time of this communication the grand jury was investigating the actions of the inmates of the Jonquil Apartments and those who resorted there. Thereafter Mrs. Levy and other young women who were inmates of the Jonquil Apartments called upon plaintiff in error Stevens at his office and conferred with him as to bringing actions to recover damages for the injury to their health because of the practices of the men who had visited them.

It is charged in the indictment that plaintiffs in error conspired to devise a scheme to defraud W. H. Evans and Kyle MacBratney and others out of their money and property, by representing and pretending to such persons that the plaintiffs in error had within their knowledge certain lewd, lascivious, indecent, scandalous, and disgraceful conduct, acts, and crimes theretofore committed by such persons, which would tend to disgrace and degrade them, and which the plaintiffs in error would threaten to make public and divulge to the world in complaints by Mrs. Levy to be filed in court, unless such persons would pay to the plaintiffs in error such sums as plaintiffs in error might or could secure by means of such threats; that it was a part of the conspiracy to accomplish and effect the scheme to defraud by means of the post office establishment of the United States by depositing in the United States post office at Los Angeles and in the stations thereof letters addressed to the persons intended to be defrauded, to be sent and delivered to those persons by the post office establishment of the United States; and that in pursuance of the conspir

acy and scheme to defraud, and for the purpose of effecting and executing the same, the plaintiffs in error, on the 17th day of June, 1913, mailed, in the United States post office at Los Angeles, the two letters set out in the indictment.

The assignments of error relate to the action of the court in overruling defendants' demurrers to the indictment, in overruling defendants' objections to the admission of certain evidence, and in refusing to give an instruction requested by the defendant McKelvey.

Charles J. Kelly, of Los Angeles, Cal., for plaintiffs in error. Albert Schoonover, U. S. Atty., and J. Robert O'Connor, Asst. U. S. Atty., both of Los Angeles, Cal.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

MORROW, Circuit Judge (after stating the facts as above). [1] 1. It is contended by the plaintiffs in error that the indictment fails to charge a conspiracy under the statute. Section 37 of the Act of March 4, 1909 (35 Stat. 1088, 1096, c. 321), entitled "An act to codify, revise, and amend the penal laws of the United States," provides: "If two or more persons conspire to commit any offense against the United States, * and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined," etc.

Section 215 of the same act (page 1130)—so far as material to this case provides:

* *

"Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, * shall, for the purpose of executing such scheme or artifice or attempting so to do, place, or cause to be placed, any letter in any post office, or station thereof,

*

to be sent or delivered by the post office establishment of the United States, * shall be fined," etc.

The indictment charges that the defendants, on June 1, 1913, in the city of Los Angeles, conspired, combined, confederated, and agreed together to commit an offense against the United States; that is, to commit acts made an offense and crime by section 215 of the Act of March 4, 1909 (chapter 321), entitled "An act to codify, revise, and amend the penal laws of the United States." The indictment then proceeds to charge the defendants with acts constituting a scheme to defraud certain persons, charging acts made an offense against both sections 37 and 215 of the Criminal Code, namely:

* And it was a part of said conspiracy of said conspirators, for the purpose of executing and effecting said scheme and artifice to defraud, and attempting so to do, to accomplish and effect, and attempt to accomplish and effect, the same by means of the post office establishment of the United States, and to place and cause to be placed in the United States post office in said city of Los Angeles, and in the stations thereof, letters addressed to said persons so intended to be defrauded, to be sent and delivered to said persons by the post office establishment of the United States."

The indictment then proceeds to set forth two letters mailed by the defendants in pursuance of said conspiracy-one dated June 17, 1913, and the other August 8, 1913.

The objection is that the charging part of the indictment makes no charge that the conspirators, at the time of forming said conspiracy, or at any other time, conspired to use the mails or post office establishment of the United States for the purpose of effecting or carrying out such conspiracy. But the first clause of the indictment makes the direct charge that the conspirators, to accomplish and effect the conspiracy, conspired to commit acts made an offense by section 215 of the Criminal Code. The indictment then proceeds to charge a scheme to defraud certain persons, and alleges that it was a part of said conspiracy to use the mails and the post office establishment of the United States for the purpose of effecting and carrying out that conspiracy. This last charge is not the allegation of an isolated act, or a mere recital or conclusion of the pleader, but a direct and positive charge that the use of the mails and post office establishment formed a part of, and was the essential act of, the conspiracy to commit an offense against the United States.

[2] 2. The further objection is made to the indictment that the charges against the defendants that they deposited the letters in the post office department are the charges of overt acts, and are the only charges that the post office was used in executing and effecting the scheme to defraud, and it is contended that these charges cannot be used to strengthen the charge of conspiracy, citing the case of United States v. Britton, 108 U. S. 199, 204, 2 Sup. Ct. 531, 534 (27 L. Ed. 698) where the Supreme Court said:

"This offense [conspiracy] does not consist of both the conspiracy and the acts done to effect the object of the conspiracy, but of the conspiracy alone. It follows as a rule of criminal pleading that, in an indictment for conspiracy under section 5440 [Comp. St. 1916, § 10201], the conspiracy must be sufficiently charged, and that it cannot be aided by the averments of acts done by one or more of the conspirators in furtherance of the object of the conspiracy."

This decision was cited in Hyde v. United States, 225 U. S. 347, 358, 32 Sup. Ct. 793, 799 (56 L. Ed. 1114, Ann. Cas. 1914A, 614), in support of a similar objection in that case. The court, in overruling the objection, said:

"It is true that the conspiracy, the unlawful combination, has been said to be the crime, and that at common law it was not necessary to aver or prove an overt act; but section 5440 has gone beyond such rigid abstraction, and prescribes, as necessary to the offense, not only the unlawful conspiracy, but that one or more of the parties must do an 'act to effect' its object, and provides that when such act is done all the parties to such conspiracy' become liable. Interpreting the provision, it was decided in Hyde v. Shine, 199 U. S. 62, 76 [25 Sup. Ct. 760, 50 L. Ed. 90], that an overt act is necessary to complete the offense. And so it was said in United States v. Hirsch, 100 U. S. 33 [25 L. Ed. 559], recognizing that, while the combination of minds in an unlawful purpose was the foundation of the offense, an overt act was necessary to complete it. It seems like a contradiction to say that a thing is necessary to complete another thing, and yet that other thing is complete without it. It seems like a paradox to say that anything, to quote the Solicitor General, ‘can be a crime of which no court can take cognizance.' The conspiracy, therefore, cannot alone constitute the offense. It needs the addition of the overt act. Such act is something more, therefore, than evidence of a conspiracy. It constitutes the execution or part execution of the conspiracy, and all incur guilt by it, or rather complete their guilt by it, consummating a crime by it, cognizable then by the judicial tribunals, such tribunals only then acquiring jurisdiction."