McWhorter v. States

TRIEBER, District Judge.

The petition for rehearing, among other grounds, claims that the offenses charged in the indictment were barred, the last overt acts having been committed more than three years prior to the finding of the indictment. The indictment is for conspiracy to violate section 215 of the Penal Code (Comp. St. § 10385), and was returned on the 4th day of January, 1922. It sets out 17 overt, acts in using the mails to execute a scheme to defraud. The first 16 acts enumerate letters sent to 16 different persons through the post-office department of the United States in the year 1918, therefore more than three years before the return of the indictment. The seventeenth overt act charges sending a letter to Mrs. Jennie Biggerstaff, Broken Bow, Neb., on January 9, 1919, therefore within three years. At the trial in the District Court the attention of the court was not called to these facts, either by demurrer to the indictment or any part thereof, or motion in arrest of judgment or for an instruction to the jury. Nor were they assigned as error in the assignment of errors, or referred to in the briefs of counsel or in the oral arguments at the hearing in this court. In the petition for rehearing they are for the first time called to our attention.

In view, of the provisions of section 269, Judicial Code as amended by the Act of February 26, 1919 (section 1246, U. S. Comp. St. 1919 Supp.), it is our duty to look to the entire record before the court, and give judgment without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties. In August v. United States, 257 Fed. 388, 168 C. C. A. 428, this court reversed a conviction for improper argument to the jury by the District Attorney, although no exceptions had been taken at the trial. This case was followed by this court in Skuy v. United States, 261 Fed. 320, Clark v. United States, 265 Fed. 104, McNutt, v. United States, 267 Fed. 570, and by several Circuit Courts of Appeals of other Circuits. For this reason there could be no verdict of guilty on these overt acts.

As the seventeenth overt act charges the use of the mails on January 9, 1919, which is within .three years of the filing of the indictment, the verdict of the jury can be sustained, if there was any substantial evidence to warrant it. A careful reading of the record fails to show that this letter of January 9, 1919, was ever sent by any of the defendants through the mails to Mrs. Biggerstaff. The only letters which she testified as having received from the company through the post office were mailed, one September 4, 1918, and one December 17, 1918, each more than three years prior to the filing of the indictment. The only evidence that this letter or one similar to it was ever sent by the defendants through the mails on January 9, 1919, was the testimony of Mr. Lee Hallsted, the person named in the overt act enumerated 12 in the indictment. He testified to having received this letter of January 9, 1919, but the indictment does not allege this letter to have been mailed to him, but only charges a letter sent to him on September 24, 1918. As there is no evidence whatever that the letter of January 9, 1919, set out as the seventeenth overt act, was ever sent to or received by Mrs. Biggerstaff, there is no evidence of any overt act committed within three years prior to the filing of the indictment.

The judgment of this court, heretofore entered, affirming the judgment of the District Court, must be and is set aside, and the cause reversed, with directions to grant a new trial.