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Some schemes may be

ment Company, or as to its mode of doing business, no suggestion that it failed to issue its bonds to any or every one advancing the required dues or that its promise of payment according to the conditions named in the bond was not a valid and binding promise. And then as counsel say in their brief, 'it (the indictment) discloses, on its face, absolutely nothing but an intention to violate a contract. If there be one principle of criminal law that is absolutely settled by an overwhelming avalanche of authority, it is that fraud, either in the civil courts or in the criminal courts, must be the misrepresentation of an existing or a past fact and can not consist of the mere intention not to carry out a contract in the future.' The question thus presented is one of vital importance and underlies both cases. We can not agree with the counsel. The Statute is broader than is claimed. Its letter shows this: 'Any scheme or artifice to defraud.' promoted through mere representations and promises as to the future, yet are none the less schemes or artifices to defraud. * * * But beyond the letter of the Statute is the evil sought to be remedied which is always significant in determining the meaning. It is common knowledge that nothing is more alluring than the expectation of securing large returns on small investments. Eagerness to take the chances of large gains lies at the foundation of all lottery schemes and even when the matter of chance is eliminated any scheme or plan, which holds out the prospect of receiving more than is parted with, appeals to the cupidity of all. In the light of this the Statute must be read, and so read it includes everything designed to defraud by representations as to the past or present or suggestions and promises as to the future. The significant fact is the intent and purpose. The question presented by this indictment to the jury was not as counsel insist whether the business scheme suggested in this bond was practical or not. If the testimony had shown that this Provident Company and the defendant, as its president, had entered in good faith upon that business, believing that out of the money received they could, by investment or otherwise, make enough

to justify the promised returns, no conviction could be sustained, no matter how visionary might seem the scheme. The charge is that in putting forth this scheme it was not the intent of defendant to make an honest effort for its success, but that he resorted to this form and pretense of a bond without a thought that he or the company would ever make good its promises. It was with the purpose of protecting the public against all such intentional efforts to despoil and prevent the postoffice from being used to carry them into effect that this Statute was passed; and it would strip it of its value to confine it to such cases as disclosed an actual misrepresentation as to some existing fact, and exclude those in which is only the allurement of a specious and glittering promise. This, which is the principle contention of counsel, must be overruled."

Sec. 202. The history of the administration of the law in the Postoffice Department shows that two classes of frauds are common. First, where the promoters do not intend to do anything toward the execution of their promises, such as a promise to send some article of value or to appoint agents at good salaries upon receipt of specified sums of money. Second, where the promoters so adroitly contrive their schemes as to make the public believe one thing will be done when the promoter intends to do another. One party, for instance, advertised that he would give employment to parties for "writing at home." When the victims sent their money they learned that the "writing at home" meant simply the writing of the letters they had already sent to the swindlers. Another used language calculated to make the public believe an article would be given free upon sending a small sum to pay for a periodical (devoted wholly to advertising fake concerns). This notice wound up by saying, "Send us the money and we will send you the paper and our offer." The money would be sent and the writer would receive the worthless paper and a printed slip headed, "Our offer," in which it was explained that upon receipt of the money for a club of subscribers, ranging from 5 to 50, the free article would be sent. Another party advertised a chinch-bug destroyer for $5. When the

victim received the "destroyer" he found it to consist of two small paddles, and he was directed to catch the chinch bug, put it on one paddle, strike it with the other, and death would be instantaneous.

An enterprising man offered to send a fine steel engraving of Gen. Washington to anyone remitting to him a small sum of money. When he received the money he sent a postage stamp with Washington's engraving on it.

There are probably thousands of frauds of this character constantly advertised in our country by which the people are fleeced. The promoters of these schemes usually demand very small sums, so that the victims rather than be put to the trouble and expense of seeking redress in the courts ordinarily submit; and such schemes as these are the ones Congress intended to suppress, so far as the mails are concerned.

SCHEMES INVOLVING THE EXERCISE OF SUPERNATURAL POWER.

Sec. 203. As is well known there are many fakirs in the world who dupe people by taking advantage of popular superstitions or inducing a belief in their supernatural power. There is the fortune teller claiming to be the seventh daughter of a seventh daughter born with a veil over her face and because of such things to be endowed with power to look into the future and reveal its secrets.

Then there is the healer, who claims to possess the power to cure disease by a look or touch or through the means of some tangible object, which he has blessed and to which he has imported a healing potency. And again we find that the water witch or mineral witch, who claims to be able by supernatural or magnetic power to discover hidden streams of water or treasure. Some of these utilize this supposed power to make money, while others take what the public give them, claiming nothing as a right. It is a very delicate question how far the Government has the right to go in suppressing the business of these people through the mails.

Sec. 204. A party claiming to be a physician advertised that he had learned a secret through the spirit of Rameses, I,

by which he could cure certain diseases. In pursuance of the information, thus obtained, he prepared a disc about an inch and a quarter in diameter, which he sold for a dollar. He cautioned the purchasers not open it as it would thereby lose its efficacy, which had been imported to it by much meditation and loss of power on his part and he directed that the parties, using it, should place it over the heart, concentrate the mind on it and repeat slowly and solemnly the word "Tetragrammaton." Complaints were made to the Postoffice Department that this scheme was a fraud and its promoter was denied the use of the mails. The officials of the Postoffice Department dissected the disc and it was found to be made of a circular piece of paste board, with tin foil on each side and covered with chamois skin, the whole cost of material and work being about five cents.

Sec. 205. Another case of this class is U. S. vs. Fay, 83 Fed. Rep. 839. Fay pretended that he had some mysterious, superhuman power,, among other things, to penetrate, with mental reason into the bowels of the earth and discover the location there of supposed hidden treasures. He wrote to one Howard, advising him of his possession of these powers, which he represented to be higher than mortal and assuring him for $50, he would positively find certain treasures supposed to be hidden away somewhere on Howard's farm. The money was paid, the treasures were not found and Fay was indicted in the U. S. District Court at St. Louis. That court. held that was not a scheme to defraud under section 5480 R. S., U. S., on the ground that the scheme was visionary, irrational and stupid, and as not being calculated to deceive a rational being possessed of ordinary sagacity. The judge said: "There is a marked distinction between a case of this kind involving, as it does, a physical impossibility and one related to religious, moral or ethical tenets. A scheme to defraud, planting itself upon, and seeking to take advantage of such tenets entertained as they are by a large number of people, has been held to be within the contemplation of the

federal statutes and with this class of cases I have no fault to find."

Sec. 206. This ruling is in conflict with the spirit of the law as interpreted by other courts, by the Postoffice Department and by the Supreme Court of the United States. With all due deference to the opinion of the learned judge in this case it may be assumed as unquestionably the intent of Congress in this legislation to protect the unwary and simple from the fraudulent machinations of the crafty and unprincipled. As was stated by the promoter of a fraudulent scheme a few years ago to the postal authorities at Washington, it is not the wise, shrewd business men and women, whom these schemers hope or expect to fleece, but the unwary and foolish.

If the test made by the court in this case be applied to the facts in the Durland case the conclusion of the Supreme Court would have been the reverse of what it was. In that case Durland set forth his plan of operations with great precision and particularity and anyone, with ordinary business capacity, could have soon discovered, by investigation, that inevitable loss must come to a very large number of the investors in the scheme and yet the court held the scheme came within section 5480, because the jury had found Durland divised it to defraud and used the mails in conducting it. The court in the Fay case says that while the freedom of religious opinion and thought should be scrupulously maintained, yet a scheme to defraud, planting itself upon and taking advantage of religious tenets, should be held to come within the contemplation of the Federal Statute. Why? There are hundreds of millions of people in the world to-day who have opinions relative to the supernatural, that other hundreds of millions of people regard as visionary, irrational and stupid. If taking advantage of these opinions to perpetrate a fraud brings the scheme within the Statute, why should not taking advantage of the opinion, entertained by a large number of people and intelligent people too, that there are men who possess the supernatural power of locating water or treasure hidden beneath the earth's sur face? These men are known among the people as water or

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