The opinion of the court was delivered by: BYERS
The defendant has filed a plea to the above indictment of former jeopardy, which requires disposition. The United States has filed a reply, and to that the defendant has made replication.
The indictment contains three counts, and charges mail fraud involving the mailing of letters within this district on January 17, 1936, February 12, 1936, and March 14, 1936, as part of a scheme, artifice and device to defraud one Carl Johnson and others.
The prior indictment, bearing the number 36896, against the same defendant, was founded upon the said letter of January 17, 1936. That came to trial on March 23, 1937, and at the close of the government's case a motion to dismiss the indictment, which had been denied after the jury was impaneled and sworn, was renewed and, upon such renewal, it was granted upon the ground that the indictment was insufficient. The language of the trial judge was this:
"I will dismiss the indictment on the ground that, in my opinion, it is insufficient. I am not deciding this case on the merits. I am dismissing the indictment.
"I do not think that the indictment sets forth a crime. The indictment ought to say the mails were used pursuant to a scheme to defraud.
"Mr. Wackerman, I will grant your motion originally made, to dismiss the indictment for insufficiency. I am not deciding the merits at all."
To the foregoing, the defendant's attorney took an exception.
The applicable rule was stated in Manning v. United States (C.C.A.) 275 F. 29, at page 31: "The question here is whether or not the defendant has been put twice in jeopardy in violation of this declaration [Fifth amendment to the Constitution], and 'the test is, whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction; when there could, the second cannot be maintained; when there could not, it can be.' [Citing cases.]"
The question for decision, in its most favorable aspect to the defendant, is whether the letters of February 12, 1936, and March 14, 1936, could have been proved under the first indictment.
The proceedings of March 23, 1937, are before the court and have been consulted. It is true that the last-mentioned letters were received in evidence subject to connection and subject to a motion to strike, but obviously they did not prove or tend to prove that the letter described in that indictment of January 16, 1936, had been mailed by the defendant.
This was recognized by the defendant's counsel in making his objection to those letters, his language being: "At this time I want to move to strike out Government's Exhibit #3, that is the letter of March 14th, and Government's Exhibit #2, the letter of February 12th, on the ground that there is absolutely no connection in this case with the indictment."
It is true that the motion was denied, but that does not mean that the court would have retained those two letters in evidence, had the case been finally submitted to the jury on the merits.
The first indictment was not concerned with the letters of February 12th and March 14th and, within the foregoing test, it is not seen how any question of second jeopardy is presented in ...