
    No. 350
    VAN TRESS et al v. UNITED STATES
    U. S. Circuit Court of Appeals, 6th Circuit
    No. 3600.
    Decided Oct. 5, 1923
    285. CONSPIRACY — Evidence as to misrepresentations in prosecution for conspiracy to use mails to defraud insufficient to sustain conviction — In prosecution for conspiring to use mails to defraud, one of the alleged conspirators could not be convicted on evidence showing him to be sole actor — Denial of directed verdict not error, if there is evidence supporting a subsidiary theory — Evidence of conspiracy to use mails to defraud held insufficient by jury.
   DENISON, C. J.

Van Tress and 15 others were indicted of conspiracy to use the mails in executing a scheme to defraud and thus violating Section 37 of the Penal Code. In the fall of 1917, as had been done in previous years, the United States was to sell a large number of tracts of Indian land in southwestern Oklahoma. Van Tress, through the medium of a corporation controlled by him, was engaged in real estate business, giving particular attention to these Indian lands. The general plan of the Exchange was to procure from prospective investors throughout the country contracts by which the Exchange was made agent for the investor to buy a tract of these landis. The investor was to advance the money and the Exchange was to receive compensation for its services in locating and securing a tract and attending to the details of the purchase.

Attorneys — Charles C. Benedict and Timothy T. Ansberry, for Van Tress et al; James R. Clark, for United States.

This general method of doing business had been followed by the Exchange for several yeans. To attract investors and to induce the making of these agency contracts it maintained a considerable number of railroad cars. Each of these was fitted up with maps, photographs, literature and samples of Oklahoma agricultural products. The practice was to send one of these cars, accompanied by salesmen, into a city and advertise the plan in the local newspapers. By this means many investors were procured. It was not claimed that the Exchange converted the money to its own use, but that there was a misrepresentation as to the nature and character of the land. In reversing the judgment of the lower, court, the United States Circuit Court held:

1. In the prosecution of the manager, officers and salesmen of a concern for conspiring to use the mails to defraud, in violation of Penal Code '37 (Comp. St. 10201), in which it was claimed that the defendants induced persons by means of fraud to enter into contracts appointing the concern their agent in the purchase of Indian lands, evidence as to several instances of misrepresentations by salesmen as to the land values held insufficient to sustain conviction; the charge being conspiracy, and the salesmen being guilty, notwithstanding such misrepresentations, only if they participated in the conspiracy.

2. In the prosecution of the manager, officers and salesmen of a concern for conspiring to use the mails in executing a scheme to defraud, in violation of Penal Code 37 (Comp. St. 10201), in which it was claimed that the defendants induced persons by means of fraud to enter into contracts appointing the concern their agent in the purchase of Indian lands, the maneger could not be convicted on evidence showing that he was the sole planner and actor, the charge being conspiracy.

3. In a prosecution for conspiracy to use the mails to defraud, in violation of Penal Code 37 (Comp. St. 10201), the denial of defendant’s motions for a directed verdict would not have been errer, even though there was no substantial evidence to support the theory of guilt charged in the indictment and maintained during the trial,, if there was evidence supporting a subsidiary theory of guilt, which could fairly be deduced from' the indictment and which had been fairly developed during the trial and was distinctly submitted to the jury. '.>]]

4. In the prosecution of the manager, officers and salesmen of a concern, for conspiring to use the mails in executing a scheme to defraud, in violation of Penal Code 37 (Comp. St. 10201), in which it was claimed that the defendants induced persons by means of fraud to enter into contracts appointing the concern their agent in the purchase of Indian lands, evidence held insufficient for submission of case to jury.  