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CASES

ARGUED AND DETERMINED

IN THE

CIRCUIT COURTS OF APPEALS AND DISTRICT COURTS OF
THE UNITED STATES, AND COURT OF APPEALS
OF THE DISTRICT OF COLUMBIA

BELLANDE et al. v. UNITED STATES.

Circuit Court of Appeals, Fifth Circuit. March 27, 1928.

Rehearing Denied April 19, 1928.

No. 5094.

1. Conspiracy 43(12)—Under Indictment for conspiracy to rob mail carrier, proof of overt act is necessary (Cr. Code, §§ 37, 197 [18 USCA §§ 88, 320]).

Under indictment charging a conspiracy, under Criminal Code, § 37 (18 USCA § 88), to rob a carrier of United States mail, in violation of section 197 (18 USCA § 320), it was necessary to prove an overt act to effect object of conspiracy.

2. Conspiracy 43(5)-Indictment for conspiracy need go no further than to allege conspiracy to commit offense and overt act to effect its object.

An indictment for conspiracy need not go further than to allege a conspiracy to commit an offense and an overt act to effect its object.

3. Conspiracy 27-Conspiracy is not ended so long as there is intention to continue it, as respects required overt act.

As respects requirement of overt act to sustain conviction for conspiracy, a conspiracy is not at an end so long as the evidence shows an intention to continue it.

4. Conspiracy 23-Object of conspiracy to rob mail carrier was not accomplished until robbers and confederates had removed mail from place of concealment and converted it

(Cr. Code, §§ 37, 197 [18 USCA §§ 88, 320]).

Object of conspiracy under Criminal Code, 37 (18 USCA § 88), to rob carrier of United States mail, in violation of section 197 (18 USCA 320), was not accomplished by mere taking of mail out of carrier's possession, but

continued until the robbers and their confederates could have an opportunity to convert it to their own use, by removing it from place where it had been concealed, when automobile, in which actual robbers were escaping, broke down.

25 F. (2d)-1

5. Conspiracy 37-Conspiracy to rob mail carrier, being felony, held not merged in overt act (Cr. Code, §§ 37, 197, 334, 335 [18 USCA §§ 88, 320, 541, 552]).

Conspiracy under Criminal Code, § 37 (18 USCA § 88), to rob carrier of United States mail, in violation of section 197 (18 USCA § 320), being an offense punishable by imprisonment for two years, and therefore a felony under section 335 (18 USCA § 541), and the overt act in carrying it out being also a felony, there was no merging of misdemeanor with felony, under section 334 (18 USCA § 552). 6. Criminal law 742 (1)-Conflict between witnesses, identifying defendants as persons committing overt act in conspiracy to rob mail, and alibi witnesses, presented jury question (Cr. Code, §§ 37, 197 [18 USCA §§ 88, 320]).

In prosecution, under Criminal Code, § 37 (18 USCA § 88), for conspiracy to rob carrier of United States mail, in violation of section 197 (18 USCA § 320), it was for jury to pass on conflict between witnesses who identified defendants as the guilty parties and the witnesses who supported their claim of alibi. 7. Conspiracy 47-Evidence held sufficient to sustain conviction for conspiracy to rob mail carrier (Cr. Code, §§ 37, 197 [18 USCA §§ 88, 320]).

Evidence held sufficient to sustain conviction for conspiracy to rob carrier of United States mail, in violation of Criminal Code, §§ 37, 197 (18 USCA §§ 88, 320).

In Error to the District Court of the United States for the Eastern District of Louisiana; William I. Grubb, Judge.

ed of conspiring to rob a carrier of United States mail, and they bring error. Affirmed.

Albert Bellande and others were convict

Chandler C. Luzenberg, of New Orleans, La., for plaintiffs in error.

W. G. Borah, U. S. Atty., and E. E. Talbot, Asst. U. S. Atty., both of New Orleans, La.

Before WALKER, BRYAN, and FOS TER, Circuit Judges.

[1-5] The indictment is under section 37 of the Criminal Code (18 USCA § 88), and it was therefore necessary to prove an overt act to effect the object of the conspiracy. It is argued that the jury may not have based their verdict on the first overt act, upon the theory that it was done innocently, and not for the guilty purpose alleged. Assuming that the jury so found, the position is taken that a verdict of guilty could not have been based upon a finding in favor of the government on the second overt act, because it could not have been committed during the existence of the conspiracy, but is affirmatively alleged to have been committed after the conspiracy was at an end. The argument is made, also, that the conspiracy charged is a misdemeanor, and was merged in the second overt act, which is made a felony by section 334 of the Criminal Code (18 USCA § 552).

BRYAN, Circuit Judge. The defendants, troduced testimony tending to prove an alibi. Cook, Glynn, Bellande, and Normandale, The assignments of error complain of the were convicted upon an indictment which refusal of the court to direct a verdict for charged them with conspiracy to rob a carrier each of the defendants. of United States mail, in violation of section 197 of the Criminal Code (18 USCA § 320). Actual robbery was shown by the undisputed evidence. The trial court submitted to the jury two overt acts, which the indictment alleged were committed to effect the object of the conspiracy: The first that, two or three days before the robbery, Bellande and Normandale had a Cadillac automobile repaired for the purpose of using it in committing the robbery; and the second that, on the day of the robbery, but after it was committed, the same two defendants removed the mail bags and their contents from a negro church in New Orleans, where they had been placed by the other defendants, Cook and Glynn. Uncontradicted evidence was to the effect that the substantive offense was committed at St. Rose, La., by two men in a Cadillac car, who immediately thereafter drove the car to New Orleans, a distance of 15 to 18 miles; that the car broke down, and was abandoned in New Orleans near a negro church; that the mail sacks were removed from the church by two men who were using a Ford car. Less than two hours elapsed from the time of the robbery to the time of the removal of the mail from the church.

The evidence was in conflict as to the identity of the parties who committed the robbery and brought the mail to New Orleans and of the parties who removed it from the church. Witnesses for the government identified Cook and Glynn as the actual participants in the robbery and the occupants of the Cadillac car. They also identified Bellande and Normandale as the parties in the Ford car who removed the mail from the church.

Bellande testified that he and Normandale had the Cadillac repaired as alleged, but stated that their purpose was to use it on an innocent mission. He also admitted that, as soon after the robbery as he learned that the car was broken down, he directed the man who had previously repaired it to remove it from the street. Before the repairman could comply with this direction the car was seized by the police. As against the case made by the government, each of the defendants in

We are of opinion that proof of the conspiracy and of the second overt act was sufficient.

An indictment need not go further than to allege a conspiracy to commit an offense and an overt act to effect its object. But the conspiracy is not at an end as long as the evidence shows an intention to continue it. Such intention was shown in this case by the successful efforts of the robbers to keep the mail sacks in their possession. The object of the conspiracy was not accomplished by the mere taking of the mail out of the possession of the carrier, but continued until the robbers and their confederates could have an opportunity to convert it to their own use. There was no merging of a misdemeanor with a felony, for the conspiracy charged was punishable by imprisonment for two years. An offense which is punishable by imprisonment exceeding one year is a felony. Criminal Code, § 335 (18 USCA § 541).

[6, 7] It was for the jury to pass upon the conflict between the witnesses who identified defendants as the guilty parties and the witnesses who supported their claim of alibi. The evidence for the government was strong and substantial enough to sustain the verdict. The judgment as to each defendant is affirmed.

25 F.(2d) 3

ECHOLS v. UNITED STATES. Circuit Court of Appeals, Fifth Circuit. March 26, 1928.

Rehearing Denied April 19, 1928.

No. 5257.

1. Criminal law 1173(1)—Refusal of charges

that evidence was insufficient to sustain counts was not reversible error, if any one of them was properly refused (Cr. Code, § 215 [18 USCA § 338]).

Where proper conviction under any of counts charging violation of Criminal Code, 215 (18 USCA § 338), by using mails to defraud, would sustain sentence of three years which was imposed, conviction is not subject to reversal because of refusal to give requested charges, which severally as to each count stated the evidence was insufficient to convict thereunder, if any one of such requested charges was properly refused.

2. Post office 48 (42)-Counts of Indictment for use of mails to defraud held to have sufficiently Informed accused of particular corporate victim (Cr. Code, § 215 [18 USCA § 338]).

Counts of indictment, under Criminal Code, § 215 (18 USCA § 338), for using mails to defraud, held to have sufficiently informed accused that they were charged with devising described scheme to defraud named corporation, which each count alleged was victim of transaction alleged therein, and was addressee of document mailed by accused for purpose of executing that scheme.

3. Post office 48 (8)-Allegations that victims were corporations of South Bend, Ind., held not materially variant from evidence that they were Virginia corporations doing business in South Bend (Cr. Code, § 215 [18 USCA § 338]).

Evidence that corporation which accused were alleged to have defrauded by use of mails, in violation of Criminal Code, § 215 (18 USCA §338), was a Virginia corporation engaged in business in South Bend, Ind., held not materially variant from allegations of indictment that victims were corporations of South Bend, Ind.

In Error to the District Court of the United States for the Northern District of Alabama; William I. Grubb, Judge.

Jerry L. Echols was convicted of certain offenses, and he brings error. Affirmed. P. E. Culli, of Gadsden, Ala. (Bart. A. Riley, of Miami, Fla., on rehearing), for plaintiff in error.

J. S. Franklin, Asst. U. S. Atty., of Birmingham, Ala. (C. B. Kennamer, U. S. Atty., and J. S. Franklin, Asst. U. S. Atty., both of Birmingham, Ala., on the brief), for

the United States.

Before WALKER, BRYAN, and FOSBefore WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge. [1] The plaintiff in error, Jerry L. Echols, was con

victed under 12 of the 14 counts of an indictment charging him and other named persons with violations of section 215 of the Criminal Code (18 USCA § 338) by devising a scheme or artifice to defraud and using the United States mails for the purpose of executing such scheme or artifice or attempting to do so. Echols complains of the court's refusal to give requested charges, which severally as to each of the counts under which he was convicted were to the effect that, if the jury believed the evidence, they could not convict under that count. As a proper conviction under any of those counts would sustain the sentence imposed on Echolsimprisonment in the federal penitentiary at Atlanta, Ga., for and during the period of three years-the judgment is not subject to be reversed because of the refusal to give those charges, if any one of them was properly refused. The refusal to give those charges is complained of on the ground that the evidence adduced to support the charges made was variant from the allegations of the indictment.

What was relied on as variances is indicated by the following statement: Each of the counts contained allegations as to a scheme or artifice to defraud "the Industrial Finance Corporation and the Industrial Acceptance Corporation, corporations of South Bend, Indiana," by instruments falsely purporting to represent or to refer to actual sales of automobiles, and that obligations of purchasers thereof for the whole or part of the sale contracts or liens on the automobiles purchase price were secured by conditional falsely pretended to have been sold. Each of the counts, in alleging what was done by the accused in carrying out the alleged scheme to defraud, alleged the making to "the company" of stated false representations, that the accused falsely and fraudulently secured from "the company" a stated sum of money, and that the accused deposited in the mail a document addressed to the Industrial Finance Corporation or to the Industrial Acceptance Corporation; some of the counts, those based on alleged transactions in 1924, alleging that what was deposited in the mail was addressed to the Industrial Finance Corporation, and other counts, those based on alleged transactions in 1925, alleging that what was deposited in

the mail was addressed to the Industrial Ac

ceptance Corporation, no count alleging that what was deposited in the mail was addressed to both the Industrial Finance Corporation and the Industrial Acceptance Corporation. Evidence adduced was to the following

effect: The Industrial Finance Corporation err in refusing to give some, at least, of the was a Virginia corporation, the name of above-mentioned requested charges, and that which was changed on January 1, 1925, to the record does not show any reversible erthe Industrial Acceptance Corporation. ror. That corporation was engaged in business at South Bend, Ind., during the period of the transactions alleged and deposed to.

[2, 3] The indictment did not allege that any victim of the alleged scheme to defraud was an Indiana corporation. The designation of

The judgment is affirmed.

FENDEN CO. et al.

Circuit Court of Appeals, Sixth Circuit.
April 3, 1928.

No. 4785.

1. Bailment 22-Contract held to give "owner" of parcel carriage system, installed in "user's" store, cumulative right to retake it on contingency specified and to mature future payments.

the Industrial Finance Corporation and the LAMSON CO. v. ELLIOTT-TAYLOR-WOOLIndustrial Acceptance Corporation as "corporations of South Bend, Indiana," was not inconsistent with any corporation so referred to being one organized under the law of Virginia and engaged in business at South Bend, Ind. As the allegations of each of the counts indicated that a company -not two companies or corporations—was the intended and actual victim of the alleged scheme to defraud, and showed that what was done by the accused for the purpose of executing that alleged scheme was a transaction with either the Industrial Finance Corporation alone or with the Industrial Acceptance Corporation alone, and not a transaction with more than one corporation, it well may be inferred that the scheme to defraud alleged in each count did not import a joint defrauding of two named corporations, and that the accused, in devising the alleged scheme to defraud, contemplated the defrauding of one named corporation at a time. Marrin v. United States (C. C. A.) 167 F. 951, certiorari denied 223 U. S. 719, 32 S. Ct. 523, 56 L. Ed. 629.

It follows that allegations of one of the counts were supported by evidence as to the accused devising such a scheme as the one described in that count to defraud the Industrial Finance Corporation, and as to the accused in carrying out that scheme mailing a document addressed to the Industrial Finance Corporation alone. We are of opinion that each of the counts under which the plaintiff in error was convicted sufficiently informed the accused that they were charged with devising the described scheme to defraud the named corporation which that count alleged was the victim of a transaction alleged therein, and was the addressee of a document mailed by the accused for the purpose of executing that scheme, and that evidence that that corporation was a Virginia corporation, and that it alone was the intended victim of what that count alleged was done by the accused for the purpose of executing that scheme, was not materially variant from the allegations of that count. We conclude that the court did not

Contract for installation by "owner" of parcel carrying system in "user's" store, requiring owner to keep system in repair for term of ten years, user to pay for cost of installing or continuing system by specified quarterly payments, and further providing that, in case of user's breach of agreement, bankruptcy, insolvency, or appointment of receiver of its business, all payments to end of agreement should at once become due without demand "and, in addition thereto," authorizing owner to retake sions for retaking system and maturing paysystem, held to give owner benefit of both proviments cumulatively and not in alternative.

authorizing

2. Damages 80 (3)-Contract
"owner" to retake parcel carrier system in-
stalled in "user's" store and precipitate future
payments, held valid as against contention
that it involved penalty or forfeiture.

Contract for installation by "owner" of parcel carrying system in "user's" store, requiring owner to keep system in repair for term of ten years, system to be returned at end of agreement, user to pay for the cost of installing or continuing system by specified quarterly payuser's breach of agreement, bankruptcy, inments, and further providing that, in case of solvency, or appointment of receiver of its business, all payments to end of agreement should at once become due without demand "and in adtem, held valid, as against contention that, bedition thereto" authorizing owner to retake syscause it permitted owner both to retake it for user's default and precipitate future payments, it was invalid as involving penalty or forfeiture. 3. Damages 85-Agreement for liquidated damages proportionate to extent of default will be enforced.

When competent parties dealing as strangers provide for stated damages on default, and the damages are made proportionate to the extent of the default and probably approximate actual damages, contract will be enforced.

Appeal from the District Court of the United States for the Eastern District of Michigan; Charles C. Simons, Judge.

25 F.(2d) 4

Petition for reclamation by the Lamson Company, filed in the receivership of the Elliott-Taylor-Woolfenden Company. From a decree confirming the report of the master rejecting the claim, petitioner appeals. Reversed and remanded.

The Lamson Company installed what was called a service system (a cash and parcel carrier), in the retail store of the Elliott Company. This was pursuant to a contract dated August 16, 1920, and modified by two later agreements. As modified, it named the Lamson Company as owner and the Elliott Company as user; and by it the owner agreed to install a specified carrier system on the premises of the user, and to continue to supply all parts necessary to keep the system in proper repair. The term of the agreement was to be ten years, though it might be aumatically continued after the term, by common consent. It was not contemplated that the title to the system itself should ever pass to the user; on the contrary, the user unconditionally agreed to return to the owner at the end of the agreement or any extension the system in as good order and condition as when put in, reasonable use and wear excepted. The user agreed to pay to the owner "for the cost of installing or continuing this Lamson system, for the license to use it under the owner's letters patent, for the agreement to supply parts for repairs, and for the right to operate this system in these premises during the term of this agreement, an amount equal to the sum of all partial payments herein provided, as follows:" $512 every three months (thus making a total of $20,480 for the term). The user was also given the option to cancel the agreement at the end of the first five years upon the payment of all the amounts which had accrued to that time, and a specified sum of $5,722, and this payment was to be made in connection with and in recognition of the owner's right then to remove the system after the cancellation. The record does not show how this amount was to be arrived at, but it would seem to have taken into account the remaining payments, their reduction to present worth, and such benefits as the owner received through the cancellation and return.

It was further provided that "these presents are upon the condition that, in the event of a breach by the user of any of the covenants herein contained, or if during the term

1 There was an option, good for the first 90 days only, to purchase the system at a stated price, which was 56 per cent. of the total installments.

of this agreement, or any extension thereof,
bankruptcy or insolvency proceedings are
commenced by or against the user,
or if receivers are appointed to take posses-
sion of the business of the user,
or if the user discontinues business in these
premises, ⚫
all unpaid amounts to
the end of this agreement, or any extension
of it, shall, without notice of [or] demand
by the owner, be at once precipitated and be-
thereto the owner may enter the premises,
come due and payable; and in addition
forcibly if necessary, take possession of and
remove this system and thereby terminate
all rights and interest of the user therein.
shall be valued at a sum equal to 20 per cent.
It is agreed that the user's interest therein
of the amount of the payments for said un-
expired term, and that this amount shall be
allowed in deduction of the user's obligation
herein."

Payments were continued until January
30, 1924. At that date, upon a suit brought
in equity in the court below, alleging that the
defendant was solvent and that the business
ought to be continued and the good will pre-
served, a receiver was appointed, who took
possession and continued the business. He
paid the installments accruing until, under
the order of the court, he sold all the assets
to one Netzorg. The Lamson Company then
filed in the receivership case a petition for
an order reclaiming the system. This pro-
ceeding seems to have been dropped upon
the making of a new agreement between the
owner and Netzorg, for the term of two
years, by which he agreed to pay the same
quarterly amounts, and which agreement, we -
assume, was in the same form. The evidence
indicates that the owner was not able to ne-
gotiate any longer term with Netzorg, and
that very shortly the latter's commercial en-
terprise also failed. Eventually the owner
presented against the receivership estate a
claim for the specified quarterly payments,
from the date of last payment by the receiv-
er to the end of the first five-year period,
plus the cancellation price which might have
been availed of at that time, and less the to-
tal amount of the two-year renewal contract
made with Netzorg. The net claim was $5,-
356. It would seem that, as charging up the
five-year cancellation price gave the user
more credit than he would have had under
the 20 per cent. clause, this latter credit was
not given. The master reported a rejection
of the claim, and the court confirmed the re-
port.

Francis W. Allen and De Lancey C. Haven, both of Detroit, Mich., for appellant.

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