Cite as 155 F.2d 955
were engaged in the sale of investment contracts.[1] The record shows that appellants made sales of the land by means of false promises and agreements to drill oil wells from which the investors would earn large profits. Warranty deeds purporting to convey title in such circumstances constituted investment contracts within the meaning of the Securities Act.[2] It was the practice of those appellants who made sales of the land to order warranty deeds from appellant Mansfield at San Antonio, Texas, by mail; and the latter then executed deeds and mailed them to the County Clerk at Alpine, Texas, with instructions to forward them after recordation to one of the appellants in California, or to an investor. The scheme could not have been carried out without the use of the mails.
Appellants contend that there was no conspiracy or intent to use the mails in furtherance of a fraudulent scheme. The conspiracy consisted of a scheme to defraud people in the sale of land. The Government charged, not a conspiracy to commit a single act, but a continuing conspiracy to carry on the fraud, for a long period of time. It is the rule that where the accomplishment of the conspiracy contemplates the use of the mails, and such use is essential to the execution of the scheme, intent on the part of the conspirators to use the mails may be inferred. In the instant case the use of the mails was indispensable in carrying out the conspiracy. This warranted the finding that all who feloniously participated in the scheme were guilty of conspiracy to use the mails to defraud, although they did not themselves make use of the mails. It was not necessary to show intent in connection with the substantive counts of the indictment. It was enough to show that the mails were used and that the scheme was one which reasonably contemplated the use of the mails.[3]
Appellants contend that the trial court committed error in the admission of certain evidence and in refusing to give the special instructions to the jury requested by them. These contentions are without support in the record. We think the verdict was amply warranted by the evidence as to all of the appellants, and the judgments appealed from are affirmed.
RIPLEY v. FINDLAY GALLERIES, Inc., et al.
No. 8883.
Circuit Court of Appeals, Seventh Circuit.
June 11, 1946.
Rehearing Denied July 9, 1946.
- ↑ Securities and Exchange Commission v. W. J. Howey Co., et al, 5 Cir., 151 F.2d 714, appeal pending.
- ↑ 15 U.S.C.A. § 77b(1).
- ↑ Spivey v. United States, 5 Cir., 109 F.2d 181, 184, certiorari denied 310 U.S. 681, 60 S.Ct. 1079, 84 L.Ed. 1401; Morris v. United States, 5 Cir., 112 F.2d 522, 530, certiorari denied 311 U.S. 653, 61 S.Ct. 41, 85 L.Ed. 418; Guardalibini v. United States, 5 Cir., 128 F.2d 984; Steiner v. United States, 5 Cir., 134 F.2d 931, certiorari denied 319 U.S. 774, 63 S.Ct. 1439, 87 L.Ed. 1721; Blue v. United States, 6 Cir., 138 F.2d 351, 359, certiorari denied, 322 U.S. 736, 64 S.Ct. 1046, 88 L.Ed. 1570; United States v. Cohen, 2 Cir., 145 F.2d 82, certiorari denied 323 U.S. 799, 65 S.Ct. 440, 89 L.Ed. 636; Marshall v. United States, 9 Cir., 146 F.2d 618, 157 A.L.R. 241.
