WOLVERTON, District Judge
(after stating the facts as above). [ 1 ] The first and twenty-first assignments of error challenge the suffi.■ciency of the indictment. The statute under which the indictment is drawn provides that:
“Whoever, having devised or intending to devise any scheme or artifice to defraud, * * * shall, for the purpose of executing such scheme or artifice or attempting so to do, place, or cause to be placed, any letter, postal card,” etc., “in any post office * s- * of the United States, * * * to bo sent or delivered by the post office establishment of the United States, * * _ * shall be fined,” etc.
The simple elements of the offense consist in having devised or intending to devise a scheme to defraud, and in executing or carrying into effect such scheme or artifice by placing or attempting to- place a letter, postal card, etc., in the post office to be sent or delivered through the post office establishment of the United States. It is said that the misuse of the mails is the gist of the offense, or, as expressed by another court, is the “material thing” or “substance of the offense,” while, of course, it must be in execution or attempted execution of a scheme or artifice to defraud. Both elements must be present, while it is the misuse of the mails for the execution of such a scheme that is denounced. Marrin v. United States, 167 Fed. 951, 955, 93 C. C. A. 351, Gould v. United States, 209 Fed. 730, 733, 734, 126 C. C. A. 454.
Under the old section 5480, R. S., it was requisite that three matters of fact be charged in the indictment, namely: (1) That the person charged had devised a scheme or artifice to defraud; (2) that he intended to effect the scheme by opening or intending to open correspondence through the post office establishment, or by inciting other persons to open communication with him; and (3) that in carrying out such scheme such person had either deposited a letter or packet in the post office, or taken or received one therefrom. Stokes v. United States, 157 U. S. 187, 15 Sup. Ct. 617, 39 L. Ed. 667.
But the present statute, section 215 of the Code, seems to have eliminated the element that the persons devising the scheme must have intended to effectuate the same by opening or intending to open correspondence through the post office establishment, and all that is now essential is that, for the purpose of carrying into execution the scheme or artifice, a letter or other writing be sent through or taken from the post office establishment. Hence the offense as now defined consists of but two elements, whereas previously it consisted of three, as analyzed in the Stokes Case.
[730]*730Now it needs but an inspection of the indictment to determine its sufficiency. What is stated as to the scheme or artifice devised or intended to be devised is quite ample to show, not only that it amounted to a scheme or artifice, but that it was designed, intended, and calculated by its very nature to defraud, and indeed it is set out with abundant particularity, so that the indictment must be held to be sufficient.
One or two or more persons may devise a scheme or artifice to defraud, and the statute does not contemplate that, if two or more persons so deviso such a scheme or artifice, they shall be proceeded against as for a conspiracy to commit the offense denounced. While the government may prosecute for such a conspiracy if it sees fit (Stokes v. United States, supra; Wilson v. United States, 190 Fed. 427, 111 C. C. A. 231), yet it need not do so, and may prosecute for the simple offense denounced. In a prosecution for the simple offense, no overt act, as the term is understood in connection with the offense of conspiracy, is' essential to be set up, but it must be made to appear that a letter or card, etc., has been mailed for the purpose of carrying into execution the scheme or artifice devised. In the one case the conspiracy is the gist of the offense, while in the other the misuse of the mails is the material thing denounced.
Nor is it essential, in offering proof respecting the existence of a conspiracy with relation to a scheme to defraud, and the use of the mails in furtherance thereof, that such conspiracy be alleged in the indictment. It is a common thing to have the question arise whether one defendant is bound by the statements and acts of another, or of persons not even connected by indictment with the offense charged, and the constant ruling has been that, if there has' been a joint contrivance, or joint participation, with a common purpose, the acts and statements of the one, while engaged in carrying into effect the common purpose, are evidence against the other, and this without the necessity of alleging conspiracy in the commission of the offense. Fitzpatrick v. United States, 178 U. S. 304, 20 Sup. Ct. 944, 44 L. Ed. 1078, is illustrative. That was a case where three persons were jointly indicted for murder, and there was no accompanying charge that the defendants conspired to commit the act.
[2] By assignment 2 the question is presented whether the trial court should have granted separate trials. An inspection of the indictment shows the joint participation of the defendants in the offense charged, and this is sufficient reason for denying the motion.
Assignment of error No. 3, as we are informed by counsel’s brief, relates to the action of the court in admitting in evidence plaintiff’s Exhibit 7. On reference to the record, we find that the assignment is there numbered 4. The whole of the assignment reads:
“The court erred in admitting in evidence the agreement-between J. H. I-Iemphill, Russell G. Belden, and S. W. O’Brien forming Inland Surety Company.”
This is all that is given for the court’s enlightenment as to how the. question arose, or as to what were the accompanying facts and testimony, so as to show its relevancy or pertinency, or we may say its irrelevancy and incompetency as a piece of testimony to prove the guilt [731]*731of the defendants. It cannot he expected that by such a showing the court is going to grope through the record (and all of the testimony is here, with objections and exceptions as made and entered during the progress of the trial), to determine whether the defendants have a case for a valid exception or not. The purpose of the bill of exceptions is to show in tangible and feasible form the exceptions relied upon. For this reason the purported exception will not be further considered.
The fourth is even a worse assignment than the third, for on reference to the record we look in vain for any assignment of error at all relating to the admission of Exhibits 8 and 9.
So of assignments 6, 7, and 8. We refer to the assignments as numbered and stated in counsel’s argument in their brief, for it is difficult ■ to trace out the corresponding assignments in the record. They are of such a nature that the court will not examine into them for reasons above stated.
{3] Assignment 9 relates to a motion at the close of the testimony for an instructed verdict. It would be a work of supererogation to review the testimony for the purpose of determining whether there was sufficient evidence adduced to carry the case to the jury.
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WOLVERTON, District Judge
(after stating the facts as above). [ 1 ] The first and twenty-first assignments of error challenge the suffi.■ciency of the indictment. The statute under which the indictment is drawn provides that:
“Whoever, having devised or intending to devise any scheme or artifice to defraud, * * * shall, for the purpose of executing such scheme or artifice or attempting so to do, place, or cause to be placed, any letter, postal card,” etc., “in any post office * s- * of the United States, * * * to bo sent or delivered by the post office establishment of the United States, * * _ * shall be fined,” etc.
The simple elements of the offense consist in having devised or intending to devise a scheme to defraud, and in executing or carrying into effect such scheme or artifice by placing or attempting to- place a letter, postal card, etc., in the post office to be sent or delivered through the post office establishment of the United States. It is said that the misuse of the mails is the gist of the offense, or, as expressed by another court, is the “material thing” or “substance of the offense,” while, of course, it must be in execution or attempted execution of a scheme or artifice to defraud. Both elements must be present, while it is the misuse of the mails for the execution of such a scheme that is denounced. Marrin v. United States, 167 Fed. 951, 955, 93 C. C. A. 351, Gould v. United States, 209 Fed. 730, 733, 734, 126 C. C. A. 454.
Under the old section 5480, R. S., it was requisite that three matters of fact be charged in the indictment, namely: (1) That the person charged had devised a scheme or artifice to defraud; (2) that he intended to effect the scheme by opening or intending to open correspondence through the post office establishment, or by inciting other persons to open communication with him; and (3) that in carrying out such scheme such person had either deposited a letter or packet in the post office, or taken or received one therefrom. Stokes v. United States, 157 U. S. 187, 15 Sup. Ct. 617, 39 L. Ed. 667.
But the present statute, section 215 of the Code, seems to have eliminated the element that the persons devising the scheme must have intended to effectuate the same by opening or intending to open correspondence through the post office establishment, and all that is now essential is that, for the purpose of carrying into execution the scheme or artifice, a letter or other writing be sent through or taken from the post office establishment. Hence the offense as now defined consists of but two elements, whereas previously it consisted of three, as analyzed in the Stokes Case.
[730]*730Now it needs but an inspection of the indictment to determine its sufficiency. What is stated as to the scheme or artifice devised or intended to be devised is quite ample to show, not only that it amounted to a scheme or artifice, but that it was designed, intended, and calculated by its very nature to defraud, and indeed it is set out with abundant particularity, so that the indictment must be held to be sufficient.
One or two or more persons may devise a scheme or artifice to defraud, and the statute does not contemplate that, if two or more persons so deviso such a scheme or artifice, they shall be proceeded against as for a conspiracy to commit the offense denounced. While the government may prosecute for such a conspiracy if it sees fit (Stokes v. United States, supra; Wilson v. United States, 190 Fed. 427, 111 C. C. A. 231), yet it need not do so, and may prosecute for the simple offense denounced. In a prosecution for the simple offense, no overt act, as the term is understood in connection with the offense of conspiracy, is' essential to be set up, but it must be made to appear that a letter or card, etc., has been mailed for the purpose of carrying into execution the scheme or artifice devised. In the one case the conspiracy is the gist of the offense, while in the other the misuse of the mails is the material thing denounced.
Nor is it essential, in offering proof respecting the existence of a conspiracy with relation to a scheme to defraud, and the use of the mails in furtherance thereof, that such conspiracy be alleged in the indictment. It is a common thing to have the question arise whether one defendant is bound by the statements and acts of another, or of persons not even connected by indictment with the offense charged, and the constant ruling has been that, if there has' been a joint contrivance, or joint participation, with a common purpose, the acts and statements of the one, while engaged in carrying into effect the common purpose, are evidence against the other, and this without the necessity of alleging conspiracy in the commission of the offense. Fitzpatrick v. United States, 178 U. S. 304, 20 Sup. Ct. 944, 44 L. Ed. 1078, is illustrative. That was a case where three persons were jointly indicted for murder, and there was no accompanying charge that the defendants conspired to commit the act.
[2] By assignment 2 the question is presented whether the trial court should have granted separate trials. An inspection of the indictment shows the joint participation of the defendants in the offense charged, and this is sufficient reason for denying the motion.
Assignment of error No. 3, as we are informed by counsel’s brief, relates to the action of the court in admitting in evidence plaintiff’s Exhibit 7. On reference to the record, we find that the assignment is there numbered 4. The whole of the assignment reads:
“The court erred in admitting in evidence the agreement-between J. H. I-Iemphill, Russell G. Belden, and S. W. O’Brien forming Inland Surety Company.”
This is all that is given for the court’s enlightenment as to how the. question arose, or as to what were the accompanying facts and testimony, so as to show its relevancy or pertinency, or we may say its irrelevancy and incompetency as a piece of testimony to prove the guilt [731]*731of the defendants. It cannot he expected that by such a showing the court is going to grope through the record (and all of the testimony is here, with objections and exceptions as made and entered during the progress of the trial), to determine whether the defendants have a case for a valid exception or not. The purpose of the bill of exceptions is to show in tangible and feasible form the exceptions relied upon. For this reason the purported exception will not be further considered.
The fourth is even a worse assignment than the third, for on reference to the record we look in vain for any assignment of error at all relating to the admission of Exhibits 8 and 9.
So of assignments 6, 7, and 8. We refer to the assignments as numbered and stated in counsel’s argument in their brief, for it is difficult ■ to trace out the corresponding assignments in the record. They are of such a nature that the court will not examine into them for reasons above stated.
{3] Assignment 9 relates to a motion at the close of the testimony for an instructed verdict. It would be a work of supererogation to review the testimony for the purpose of determining whether there was sufficient evidence adduced to carry the case to the jury. It is sufficient tiiat even a cursory review of the testimony will satisfy any candid mind that there was ample testimony to support every materbd allegation of the two counts of the indictment submitted to the jury.
There was a controversy during the trial as to the effect and value of certain representations made by defendants, whether they were assertions of opinion merely, or the statement of matters designed to be believed as existing facts; but as to this the jury was fully and clearly instructed, and no error was committed in allowing the case to go to the jury upon the testimony.
Assignment 10 relates to the court’s instruction defining the terms “fraudulent pretenses, representations, or promises.” We refer again to the assignment as numbered in counsel’s argument in their brief, for if attempt be made to trace out any such assignment in the record it will be found to be very confusing. It seems to be thought that false pretenses have no part nor parcel in the offense with which the defendants were charged. But the court was defining the terms of the statute, and the scheme or artifice to defraud was a bundle- — and a large one at that — of false representations, if anything. If the representations could not he so characterized, then there was no scheme to defraud, for it depended for its fraudulent character on the falsity of the representations. The jury was properly instructed in this particular.
Assignments 11 and 12: Counsel’s argument in their brief is answered by what has been heretofore said respecting the indictment. It was not essential that it contain allegations of conspiracy, but it was altogether proper to charge the jury respecting the subject, if tiie evidence offered tended to show that a conspiracy really existed in relation to operations to defraud.
Assignment 13 is answered by what has been said respecting the motion for a directed verdict.
[732]*732As to assignments 14, 15, 16, 17, 18, and 19, we have examined them closely and critically, and find no- merit in any of them.
Judgment affirmed.