United States v. Hess
This case comes before us from the circuit court for the Southern district of New York on a certificate of division of opinion between the judges. The defendant was indicted in that court for an alleged offense, described in general terms as that of devising 'a scheme to defraud divers other persons,' to the jurors unknown, and intending to effect it by inciting them to open communication with him through the post-office establishment. The indictment contained two counts, but, upon the plea of not guilty, the case was submitted to the jury upon the second count alone. That count was as follows: 'And the jurors aforesaid, on their oath aforesaid, do further present that Sigismund Hess, otherwise called Samuel Hayes, late of the city and county of New York, in the district and circuit aforesaid, yeoman, heretofore, to-wit, on the third day of March, in the year of our Lord one thousand eight hundred and eighty-seven, at the Southern district of New York, and within the jurisdiction of this court, having theretofore devised a scheme to defraud divers other persons to the jurors aforesaid as yet unknown, which said scheme he, the said Sigismund Hess, otherwise called Samuel Hayes, then and there intended to effect by inciting such other persons to open communication with him, the said Sigismuch Hess, otherwise called Samuel Hayes, by means of the post-office establishment of the said United States, did unlawfully, in and for attemptin to execute said scheme, receive from the post-office of the United States at the city of New York a certain letter in the words and figures following, that is to say:
"BONILLA, D. T., 2, 25, '87.
"DR. SIR: If there is any money to be made at it, then count me in. Send on all the confidential terms you have, and you will never be betrayed by
J. M. DAVIS.
"Return this letter.'
-Which said letter was then and there inclosed in a sealed envelope, addressed and directed in words and figures following, that is to say: 'S. Brunk, Esq., 270 West 40th St., New York City, New York, c. o. Boot-Black;' against the peace of the United States and their dignity, and contrary to the form of the statute of the said United States in such case made and provided.'
The jury found the defendant guilty, and a motion was made for a new trial, and in arrest of judgment, when the following questions occurred, upon which the judges holding the court were divided in opinion: '(1) Does the second count of the indictment sufficiently describe an offense under section 5480, Revised Statutes? (2) If there is any defect or imperfection in the second count of the indictment, is it in matter of form only, not tending to the prejudice of the defendant, and within the provisions of section 1025, Revised Statutes? (3) If there is a defect or imperfection in the second count of the indictment, is it aided and cured by the verdict?' Thereupon, on motion of the district attorney, it was ordered that the points upon which the judges disagreed should be certified, with a copy of the indictment, and an abstract of the record, to this court for final decision.
The following is section 5480, Rev. St., upon which the indictment is founded: 'If any person having devised, or intending to devise, any scheme or artifice to defraud, to be effected by either opening, or intending to open, correspondence or communication with any other person, whether resident within or outside the United States, by means of the post-office establishment of the United States, or by inciting such other person to open communication with the person so devising or intending, shall, in and for executing such scheme or artifice, or attempting so to do, place any letter or packet in any post-office of the United States, or take or receive any therefrom, such person so misusing the post-office establishment shall be punishable by a fine of not more than five hundred dollars, and by imprisonment for not more than eighteen months, or by both such punishments. The indictment, information, or complaint may severally charge offenses to the number of three when committed within the same six calendar months; but the court thereupon shall give a single sentence, and shall proportion the punishment especially to the degree in which the abuse of the post-office establishment enters as an instrument into such fraudulent scheme and device.' 
Sol. Gen. Jenks, for the United States.
Geo. W. Miller, for defendant.
Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court.