
    No. 267
    BENHAM et v. UNITED STATES
    U. S. Appeals, 6th Circuit
    No. 4262.
    Decided July 15, 1925
    629. INDICTMENT — In prosecution for use of mails to defraud, allegations charging fraudulent representations as to value of stocks, their stability, etc., and representations as to stock guaranty, too vague and indefinite, when considered alone, to support conviction.
    Note — OA. opinion in State court will be found in 2 Abs. 158.
    Attorneys — Smith W. Bennett, Columbus and Robert R. Nevin, Dayton, for Benham et; Haveth Mau and William B. Bartels, Columbus for U. S.
   MACK, C. J.

William Benham and others were charged and convicted in the District Court with the use of the mails in a scheme to defraud. The indictment contained 12 counts each based upon the sending of a specific letter. The twelfth count was nolled, the jury returning a verdict on the remaining eleven. Motions for a new trial and in arrest of judgment were overruled and error was prosecuted to the Circuit Court of Appeals which held:

1. The demurrers and the motions to quash and in arrest of prosecution were properly overruled; since an indictment under the Criminal Code for use of the mails in a scheme to defraud is not subject to demurrer and motion to quash for vagueness and uncertainty.
2. It was alleged that no preferred stock dividend guaranty fund was ever set aside or established, and, to the contrary, dividends were paid out of capital contrary to law.
3. Such funds could not be established if there were no profits; the payment of dividends may have been contrary to civil law, and may have resulted in a liability as against creditors; but as to stockholders it was not necessarily fradulent.
4. The trial judge failed to make clear to the jury that the mere payment of dividends out of capital was no crime under Ohio law.
5. It is complained that the government offered in evidence certain exhibits which were not read in their entirety and sealed up as to those parts not read; and in this form sent to the jury room.
6. While sending exhibits to the jury is largely within the discretion of the trial judge, it is proper to send them only in the form in which they were offered in evidence, unless both sides consent to sealing the unread parts.

Judgment reversed and cause remanded.  