CARLAND, Circuit Judge.
Gould, Wright and White were convicted and sentenced for a violation of section 215 of the Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1130 [U. S. Comp. St. Supp. 1911, p. 1653]), which so far as is material to the present case reads as follows:
‘See. 215. 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, * * * whether addressed to any person residing within or outside thé United States, in any post office, * * * to be sent or delivered by the post-office establishment of the United States, * * * shall be fined not more than one thousand dollars, or imprisoned not more than five years, or both.”
[732]*732The validity of the indictment was challenged in the the trial court by demurrer and motion in arrest. The indictment, so far as it relates to a fraudulent scheme, is copied in the margin.1
The indictment then proceeded to allege the representations and promises to be false and fraudulent to the knowledge of defendants. It was then further alleged that the defendants, for the purpose of executing said fraudulent scheme, caused to be placed in the United States post office at Denver, Colo., two certain letters, set out in the indictment, to be sent and delivered by the post office establishment of the United States. Four other defendants were jointly indicted with' plaintiffs in error, namely, Woody, Gibson, Baker, and Rose. Woody was not tried. Gibson, Baker, and Rose were acquitted.
[1] It is claimed that the indictment does not set forth with sufficient particularity the scheme which it is alleged defendants had devised. United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516; U. S. v. Stokes, 157 U. S. 187, 15 Sup. Ct. 617, 39 L. Ed. 667; [733]*733Dalton v. United States, 127 Fed. 544, 62 C. C. A. 238; Etheredge v. United States, 186 Fed. 434, 108 C. C. A. 356; Stewart v. United States, 119 Fed. 89, 55 C. C. A. 641; Miller v. United States, 133 Fed. 337, 66 C. C. A. 399. It is first claimed that in the general allegation at the commencement of the charging part of the indictment no scheme is set forth, for the reason that certain “false devices, representations, pretenses, and promises hereinafter mentioned” are referred to, and then in the same clause is found the following language; “By means of the false and fraudulent representations, pretenses, and promises aforesaid.” We are clearly of the opinion, however, that if the use of the words “hereinafter” and “aforesaid” may be said to have been pleaded, with the result that nothing is alleged, there still remains the allegation that the defendants had devised a scheme to defraud, “which said scheme was then and there substantially as follows”; but when we get this far, we are met by the contention that the language which follows describes acts done in the execution of the scheme, but not the [734]*734scheme itself which defendants had devised before they entered upon its execution. The rule which applies to indictments for conspiracy is invoked, namely, that a charge of conspiracy cannot be aided by the averment of acts done in pursuance thereof. United States v. Britton, 108 U. S. 205, 2 Sup. Ct. 531, 27 L. Ed. 698. We do not think from the standpoint of pleading a charge of conspiracy and using the post office establishment in the execution of a scheme to defraud are at all parallel. In the former the conspiracy is the whole offense. The acts done in pursuance thereof simply make the conspiracy punishable. While in the case at bar the use of the post office establishment in the execution of a scheme to defraud is the offense which the statute denounces, and while it is held that the scheme must be sufficiently set forth so as to acquaint the defendant with the particulars thereof, still the scheme need not be set forth with that particularity which would be required if the scheme was the gist of the offense. Brooks v. United States, 146 Fed. 223, 76 C. C. A. 581; Lemon v. United States, 164 Fed. 953, 90 C. C. A. 617; Brown v. United States, 143 Fed. 60, 74 [735]*735C. C. A. 214; Hyde v. United States (C. C. A.) 198 Fed. 610. The force of the contention made by counsel under this head is illustrated by the fact that if the indictment had alleged “that the defendants would falsely represent and pretend” instead of the words “that the defendants falsely represented and pretended” the point urged would have had no application. There is no doubt in our minds but that any person of common understanding would easily understand from the indictment the scheme which it is alleged the defendants had devised. We do not wish to be understood as indorsing this mode of pleading, but we do not think the pleading in this instance is sufficiently bad to warrant a reversal of the judgment.
[2] It is next urged that the names of the persons to be defrauded must be stated. Of course the defendants, when they devised the scheme to defraud set out in the indictment, if they did devise it for such purpose, did not know the names of the individuals who would be defrauded, and the grand jury in stating the scheme must state it as the defendants understood it. We think the indictment sufficiently charges what is equivalent to a charge that it was the public generally which was to be defrauded. Brown v. United States, 146 Fed. 219, 76 C. C. A. 577; Horn v. United States, 182 Fed. 721, 105 C. C. A. 163.
[3] It is next urged that the letters set out in the indictment show on their face that they were not mailed in the execution of the scheme set out in the indictment. We cannot agree to this. The letters show that they were mailed in connection with the scheme, and for the purpose of carrying the same out. Whether the scheme was fraudulent or not was a question for the jury. Durland v. United States, 161 U. S. 306, 16 Sup. Ct. 508, 40 L. Ed. 709; Lemon v. United States, 164 Fed. 953, 90 C. C. A. 617.
[4] It is further urge8 that the indictment is bad in not alleging that the letters set out therein were addressed to some -person. The indictment alleges that the letters were deposited in the post office, addressed “Mr. U. S. Willey, Whitewater, Colo.,” and “Mr. Q. A. Woodward, Brush, Colo.” We are of the opinion that the criticism is too technical. Letters so addressed, in our judgment, were addressed to the respective addressees.
[5] It results from what has been said that the demurrer and motion in arrest were properly overruled. It is assigned as error that the evidence was not sufficient to justify the verdict. While this assignment is argued by counsel for both sides, there was'no ruling of the trial court upon which such an assignment could be based. A motion was made by counsel for the defendants at the close of the evidence for the prosecution for a directed verdict, but it was not renewed at the close of all the evidence, and was therefore waived. Neither was there any exception to the charge of the court.
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CARLAND, Circuit Judge.
Gould, Wright and White were convicted and sentenced for a violation of section 215 of the Criminal Code (Act March 4, 1909, c. 321, 35 Stat. 1130 [U. S. Comp. St. Supp. 1911, p. 1653]), which so far as is material to the present case reads as follows:
‘See. 215. 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, * * * whether addressed to any person residing within or outside thé United States, in any post office, * * * to be sent or delivered by the post-office establishment of the United States, * * * shall be fined not more than one thousand dollars, or imprisoned not more than five years, or both.”
[732]*732The validity of the indictment was challenged in the the trial court by demurrer and motion in arrest. The indictment, so far as it relates to a fraudulent scheme, is copied in the margin.1
The indictment then proceeded to allege the representations and promises to be false and fraudulent to the knowledge of defendants. It was then further alleged that the defendants, for the purpose of executing said fraudulent scheme, caused to be placed in the United States post office at Denver, Colo., two certain letters, set out in the indictment, to be sent and delivered by the post office establishment of the United States. Four other defendants were jointly indicted with' plaintiffs in error, namely, Woody, Gibson, Baker, and Rose. Woody was not tried. Gibson, Baker, and Rose were acquitted.
[1] It is claimed that the indictment does not set forth with sufficient particularity the scheme which it is alleged defendants had devised. United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516; U. S. v. Stokes, 157 U. S. 187, 15 Sup. Ct. 617, 39 L. Ed. 667; [733]*733Dalton v. United States, 127 Fed. 544, 62 C. C. A. 238; Etheredge v. United States, 186 Fed. 434, 108 C. C. A. 356; Stewart v. United States, 119 Fed. 89, 55 C. C. A. 641; Miller v. United States, 133 Fed. 337, 66 C. C. A. 399. It is first claimed that in the general allegation at the commencement of the charging part of the indictment no scheme is set forth, for the reason that certain “false devices, representations, pretenses, and promises hereinafter mentioned” are referred to, and then in the same clause is found the following language; “By means of the false and fraudulent representations, pretenses, and promises aforesaid.” We are clearly of the opinion, however, that if the use of the words “hereinafter” and “aforesaid” may be said to have been pleaded, with the result that nothing is alleged, there still remains the allegation that the defendants had devised a scheme to defraud, “which said scheme was then and there substantially as follows”; but when we get this far, we are met by the contention that the language which follows describes acts done in the execution of the scheme, but not the [734]*734scheme itself which defendants had devised before they entered upon its execution. The rule which applies to indictments for conspiracy is invoked, namely, that a charge of conspiracy cannot be aided by the averment of acts done in pursuance thereof. United States v. Britton, 108 U. S. 205, 2 Sup. Ct. 531, 27 L. Ed. 698. We do not think from the standpoint of pleading a charge of conspiracy and using the post office establishment in the execution of a scheme to defraud are at all parallel. In the former the conspiracy is the whole offense. The acts done in pursuance thereof simply make the conspiracy punishable. While in the case at bar the use of the post office establishment in the execution of a scheme to defraud is the offense which the statute denounces, and while it is held that the scheme must be sufficiently set forth so as to acquaint the defendant with the particulars thereof, still the scheme need not be set forth with that particularity which would be required if the scheme was the gist of the offense. Brooks v. United States, 146 Fed. 223, 76 C. C. A. 581; Lemon v. United States, 164 Fed. 953, 90 C. C. A. 617; Brown v. United States, 143 Fed. 60, 74 [735]*735C. C. A. 214; Hyde v. United States (C. C. A.) 198 Fed. 610. The force of the contention made by counsel under this head is illustrated by the fact that if the indictment had alleged “that the defendants would falsely represent and pretend” instead of the words “that the defendants falsely represented and pretended” the point urged would have had no application. There is no doubt in our minds but that any person of common understanding would easily understand from the indictment the scheme which it is alleged the defendants had devised. We do not wish to be understood as indorsing this mode of pleading, but we do not think the pleading in this instance is sufficiently bad to warrant a reversal of the judgment.
[2] It is next urged that the names of the persons to be defrauded must be stated. Of course the defendants, when they devised the scheme to defraud set out in the indictment, if they did devise it for such purpose, did not know the names of the individuals who would be defrauded, and the grand jury in stating the scheme must state it as the defendants understood it. We think the indictment sufficiently charges what is equivalent to a charge that it was the public generally which was to be defrauded. Brown v. United States, 146 Fed. 219, 76 C. C. A. 577; Horn v. United States, 182 Fed. 721, 105 C. C. A. 163.
[3] It is next urged that the letters set out in the indictment show on their face that they were not mailed in the execution of the scheme set out in the indictment. We cannot agree to this. The letters show that they were mailed in connection with the scheme, and for the purpose of carrying the same out. Whether the scheme was fraudulent or not was a question for the jury. Durland v. United States, 161 U. S. 306, 16 Sup. Ct. 508, 40 L. Ed. 709; Lemon v. United States, 164 Fed. 953, 90 C. C. A. 617.
[4] It is further urge8 that the indictment is bad in not alleging that the letters set out therein were addressed to some -person. The indictment alleges that the letters were deposited in the post office, addressed “Mr. U. S. Willey, Whitewater, Colo.,” and “Mr. Q. A. Woodward, Brush, Colo.” We are of the opinion that the criticism is too technical. Letters so addressed, in our judgment, were addressed to the respective addressees.
[5] It results from what has been said that the demurrer and motion in arrest were properly overruled. It is assigned as error that the evidence was not sufficient to justify the verdict. While this assignment is argued by counsel for both sides, there was'no ruling of the trial court upon which such an assignment could be based. A motion was made by counsel for the defendants at the close of the evidence for the prosecution for a directed verdict, but it was not renewed at the close of all the evidence, and was therefore waived. Neither was there any exception to the charge of the court. There remain to be considered, however, the assignments of error relating to the admission and rejection of evidence.
[6] It is contended that the trial court erred in admitting in evidence United States Exhibit No. 7. This exhibit consisted of certified copies of a complaint, judgment, execution, and return thereon in the [736]*736case of George S. Clayson, doing business as the Clayson Map Company, Plaintiff, v. The Riverside Land & Irrigation Company, a Corporation, Defendant, at one time pending in the county court, state of Colorado, county of Denver. It is said in the brief of counsel for the United States that “the purpose for which said exhibit was introduced is evident, and for that purpose it is competent testimony.” We regret if the purpose of the admission of this exhibit was evident to counsel that he did not think it best to inform us of that purpose, for we are involved in some doubt upon the subject. At the time the exhibit was first offered testimony was being given on the part of the United States for the purpose of showing that Wright and White ordered the maps and map literature which were circulated by the Riverside Land & Irrigation Company and which embodied the alleged false representations made by the defendants; the Clayson Map Company being the company which printed the maps and map literature. The complaint which forms a part of the exhibit alleges a cause of action for a balance of $424.20 for maps and map literature. The judgment rendered was upon default, and there is no recital in the judgment that any service of process was ever had upon the defendant, and nothing appears in the exhibit to show that the court had any jurisdiction over the defendant to render the judgment which it did. The return of the sheriff indorsed on the execution shows that $150 of the judgment was collected from the irrigation company, and a further certificate appears that a demand was made upon J. A. Wright, president of the company, for the balance of the judgment, which Wright failed to pay. The exhibit, when offered, was objected to for the reason that there was no evidence that process had been served upon any one in the action, ánd that the same was incompetent, irrelevant, and immaterial. This objection was sustained, but at a subsequent period of the trial the exhibit was again offered and admitted, over the same objection. If the exhibit was introduced for the purpose of showing that the Riverside Land & Irrigation Company purchased the map literature which was circulated, and contained the promises, representations, and pretenses which the indictment allege to be false, it certainly ought to have been excluded. The ex parte statements in the complaint were not competent evidence against any one (Lemon v. United States, 164 Fed. 953, 90 C. C. A. 617), and the judgment x'endered by a court which was not shown to have axxy jurisdiction over the defendant amounted to nothing. Again, if the exhibit was offered for the purpose of showing that the Riverside Land & Irrigation Company, and hence the defendants, were insolvent, it was wholly inadmissible for that pux-pose, and its admission may have been very prejudicial to the defendant. In this connection it is proper to refer to a paragraph in the charge of the trial court, which reads as follows:
“And so here, Gentlemen of the Jury, the prime question for consideration and determination is whether or not the water, in fairly sufficient amount to irrigate a substantial tract of land on the mesa, could be had, and if had, whether it was possible to conduct it, within the bounds of reason, to the land and apply it for irrigation purposes, and, if so, and if it was, in your judgment, the intent and purpose of the defendants to do that, they were not guilty; [737]*737of concocting the fraudulent scheme charged in the indictment. But it appears from the testimony in this case that some of the defendants were men without any substantial means of their own to put in this venture, and I believe their counsel has said, in argument, that none of them were men of large means. The company which was organized apparently had no capital fund that it could devote to that purpose; the whole project, if it could be carried out, must rest upon the future value of the land, raising the first payment on sold water rights from those who took up the land, or would purchase water rights on land already patented, waiting thereafter for sufficient money to construct the system.”
This language from the charge is not quoted for the purpose of making any criticism of the charge, but for the purpose of showing that the. apparent insolvency of the company was regarded as a material factor in determining the question as to whether or not the defendants intended to defraud. The judgment in Exhibit No. 7, together with the return of the sheriff, might have been strong evidence in the minds of the jurors bearing upon the question of whether the defendants had any right to assume they could carry out any such scheme as they had entered upon. We cannot come to any other conclusion than that the admission of this exhibit was error.
[7] Error is assigned in the admission of the testimony of Mary N. Hicks, a witness on the part of the United States. The defendant Woody was not on trial. Still he was manager of the Colonization Company, which was the sales agent of the Riverside Land & Irrigation Company, and Woody had much to do with the circulation of advertising literature. The witness Hicks was asked the following question:
“What was Mr. Woody’s financial condition? Can you give us that?”
The question was objected to as incompetent, irrelevant, and immaterial. The objection was overruled, and an exception taken. After counsel for the United States had directed the witness to the years 1909 and 1910, the witness answered as follows:
“I was led to believe at first that he had a great deal of money, but later on in my employment I came to the conclusion that that was not true, and that he -had nothing.”
Counsel for defendants then moved that this testimony be stricken from the record as incompetent and immaterial. The motion was overruled, and exception taken. We think the motion should have been granted. The answer of the witness simply stated the belief of the witness, and no facts upon which it was based. Such testimony bore directly upon the financial ability of Woody one of the defendants; and, while Woody was not on trial, he still was jointly indicted with the other defendants, and the force of the testimony fell upon the defendants who were being tried.
[8] It is next assigned as error that the court erred in excluding defendants’ Exhibit M. The offer of Exhibit M was objected to by counsel for plaintiff on the ground that it was immaterial. The objection was sustained and an exception taken. The effect of this rul[738]*738ing cannot be very well understood without setting forth the exhibit in full. It appears in the record as follows:
“The Paonia Hotel,
“John McNaughton, Proprietor.
“[See diagram at close.]
“Paonia, Colo. Aug. 29, 1909.
“Dear Mr. White: I talked with Mr. Martin this morning and found that he' got the line to the river last night. lie struck the North Pork 100 feet vertical above the forks of the river so that it will take about 7 mi. more of line if we adopt this elevation. After leaving Somerset there will he some rock work but taken as a whole he thinks this a very satisfactory line, for two reasons: We cross high enough to avoid most of the difficulty in crossing side gulches and there will be but little cost for right of way. Back of the Big Indian the line contemplates a 6000 ft. tunnel which will cut out about 0 mi. of hard ditching. He will go to Bridgeport with me in the morning and pick up the line and extend back to Pickett Ranch. I have asked him to do this at your suggestion and I think you can calculate that the line will be to Pickett’s not later than Wednesday. He will then (platt) up his notes and by Monday Sept, oth we will be ready for Anderson.
“As I wrote yesterday I will have a camp at Dominguez Tuesday morning. Will have Herring there and will handle all business from there. Woody has four people that I will locate tomorrow, and I am arranging so that I will be free to look after the surveys, &c. in two or three days. I have arranged here for camping outfit and will take my long (d-ferred) trip as soon as I can get away. Of course in all this matter I will carry out your wishes as to the order of the work undertaken. I would like however to suggest again that in the event of my finding adequate storage high up, Anderson’s report if made at this time would necessarily be premature. It would seem as if the right thing to do would be to run the line back to the Pickett Ranch, there let Martin (platt) his notes while I take a trip in the hills. Then let Anderson come and go over the line. This would bring him here about the last ol* Sept, as I would like to take a matter of three weeks for my trip. We have got the location of the land well in hand and I can leave it with Herring all right in a couple of days.
“I note what you say in regard to finances and I need not say to you that I appreciate the situation. It was necessary that we go any length to locate the land but now that that is practically an accomplished fact I think we must know where we are at before we go on. Not paying our bills promptly will queer us here for years to come. I would like to suggest again that as far as the Irrigation Co. is concerned-let’s stop until we get some money. I do not wish to stop any more than any one else as I realize that every minute at this timé is golden, but we must pay our bills especial^ wages when they are due. In the meantime I am going right on with the work unless I hear from you differently. I paid up my bills last night and have 10.00 now on hand. I mil need $100.00 the end of this week as I will have to pay the men Martin has employed and also a teamster for the camp and a grocery bill.
“You may still direct my mail to the Delta House. I will not be there but will have it forwarded to me. A wire care of conductor, of the MontroseGrand Jet. train will reach us all right. We will meet both trains and be ready for any one who comes. ' I will have Herring make an estimate of the amount of unlocated land and report to you at once for your guidance.
“Martin tells me that he can put on a number of surveying parties now if we desire but I think it very desirable to run at least one fly line below his last one and I would like to’ have him do this while I am away, if I do go to the mountains. lie seems to think though that he has got the line he wants right now. After talking the matter over with him tomorrow if it seems best not to run an additional line I will go with him horse back over the present line from Palisade back to the river. I am going to do this so as to suggest any additional information and work which I need at once.
“I am yours very sincerely, John Gould.”
[739]*739This letter was written at a time when it is claimed that the defendant was engaged in executing the fraudulent scheme set out in the indictment. It was a letter written by one defendant to another, and, generally speaking, would not be admissible except in cases like the one at bar. It was written over a year before the indictment in this case was returned, and there is no evidence that at the time the letter was written the defendants were aware that any proceedings were to be taken against them seeking to punish them for using the post office establishment in the execution of a scheme to defraud. In' cases involving schemes to defraud the courts very properly allow a wide latitude in the admission of evidence for the prosecution, for it is only in this way that fraud can usually be established. The defendants are called upon to meet this situation and are entitled, within reasonable limits, to show good faith and honest intent. We think this letter was a part of the res geste and was admissible for the purpose of .throwing light upon and characterizing the transaction in which the defendants were engaged.
In Hibbard v. United States, 172 Fed. 66, 96 C. C. A. 554, 18 Ann. Cas. 1040, the correspondence between the defendant and every patient which he had secured for treatment .was held admissible on his behalf, as a part of the res geste tending to show the real nature of the business done by him, although this correspondence embraced other cases than those shown in evidence by the government. The court in its opinion said in reference thereto as follows:
“The elementary rule in reference to hearsay testimony, cited in support thereof, is inapplicable to either of the tenders of file wrapper contents. While It is true that the applications and correspondence thus appearing are incompetent to prove that facts existed as therein stated, they were expressly produced and offered for another purpose, well recogniz.ed for their admissibility under the rules of evidence. In connection with the testimony of the witness Edmondson, the initial exhibits were admissible (as offered) by way of Illustration; and the subsequent tender of the 13 cases, alleged to contain the record of the entire course of business, became admissible as original evideuce of the nature of res geste. With a fraudulent scheme charged, these records (ns described) were competent, as circumstances in the course of the business which may tend to prove its real nature as carried on. In so far as such circumstances are fairly contemporaneous with the proofs offered to establish fraudulent device and execution, the doctrine is elementary that they oonstilnie parts of the res gesta; ‘and may always he shown to the jury, along with the principal fact.’ ”
In Harrison v. United States (C. C. A.) 200 Fed. 662, it was said:
“The nature of the issue to he tried, as it has been developed in this opinion, will make it clear that the respondent’s acts and efforts in the summer of 1910 to raise money with which to meet these refunds will directly bear on his intent to pay, or to avoid payment. Even his statements made in the course of such efforts, if natural to be made in connection therewith, and if not made in anticipation of this controversy, will be admissible as part of the res geste bearing on his intent His statements in August that he wished his agent to use all available property as security to borrow money on account of its urgent need for making refunds was, so far as the court could say, very probably an ‘incident immediately and unconsciously associated with the act.’ If the jury regarded it as ‘voluntary individual wariness,’ then it would lose its evidential force. St. Clair v. United States, 151 U. S. ,131 [14 Sup. Ct. 1002, 38 L. Ed. 930].”
[740]*740In St. Clair v. United States, referred to in the language above quoted, the rule in regard to the admission of evidence as being a part of the res geste is stated as follows:
“Circumstances attending a particular transaction under investigation by a jury, if so interwoven with each other and with the principal facts that they cannot well be separated without depriving the jury of proof that is essential in order to reach a just conclusion, are admissible in evidence.”
In this opinion the Supreme Court approves the following language taken from 1 Wharton on Evidence, § 259 (2d Ed.) 1879:
“Their sole distinguishing feature is that they should be the necessary incidents of the litigated act; necessary in this sense: That they are part of the immediate preparations for or emanations of such act and are not produced by the calculating policy of the actors. In other words, they must stand in immediate casual relation to the act, a relation not broken by the interposition of voluntary individual wariness, seeking to manufacture evidence for itself. Incidents that are thus immediately and unconsciously associated with an act, whether such incidents are doings or declarations, become in this way evidence of the character of the act.”
We are satisfied that error was committed in the exclusion of Exhibit M.
We have examined the other errors assigned as to the admission and exclusion of evidence, and have arrived at the conclusion with reference thereto that no error appears in the rulings complained of; but, for the errors which we have herein mentioned, the judgments below must be reversed, and a new trial granted; and it is so ordered.