Opinion
No. 378.
Submitted October 22, 1913. Decided January 5, 1914.
Where it does not appear that the judgment sustaining a demurrer to the indictment turned upon any controverted construction of the statute, this court has not jurisdiction to review under the Criminal Appeals Act of March 2, 1907. In this case as it does not appear upon what ground the court below acted in sustaining the demurrer the writ of error is dismissed.
Mr. Assistant Attorney General Denison for the United States.
Mr. Roy D. Keehn for defendant in error.
This is an indictment under § 215 of the Criminal Code of March 4, 1909, c. 321, 35 Stat. 1130, for placing a letter in the post-office for delivery by the post-office establishment for the purpose of executing a scheme to defraud. The scheme alleged was to send out puzzle pictures, advertising as a prize for the neatest correct answer a credit order for $350 on a certain piano, one for $300 for the next neatest, and others for $200 for correct answers. Persons answering were to be told that they were entitled, for instance, to an order for $200 on a piano sold the world over for $300, which would cost them $75 cash with the order. The credit was to be a pretense, as the piano to be delivered was to be one of a retail price not exceeding the cash received. It was not alleged that the piano was to be worth less than the cash paid, but, as is manifest, people were to be led into the dealing by the delusive apparatus of a promise known to be false when made, Durland v. United States, 161 U.S. 306, and false statements as to the value of the piano bought. The indictment was demurred to and the demurrer was sustained.
It will not be necessary to decide whether the facts alleged show a scheme to defraud, since it does not appear on what ground the court acted. As was said in United States v. Carter, ante, pp. 492, 494: "there is nothing in the record showing any request made to the trial court for an expression of opinion in such form as to manifest clearly whether its action proceeded upon a construction of the statute or merely upon the meaning which was given to the indictment." As it does not appear that the judgment turned upon any controverted construction of the statute, the writ of error must be dismissed in this case as in that. It is unnecessary to consider whether every determination concerning the common law of fraud taken for granted by the act would be a decision based upon the construction of the statute, within the meaning of the act of March 2, 1907, c. 2564, 34 Stat. 1246.
Writ of error dismissed.