(dissenting).
With deference, the undisputed evidence not only does not support, it completely negatives the statement of the majority opinion, “The facts show that appellant’s property was materially enhanced in value and that state funds were wrongfully diverted to personal channels.” Since however, what is in question here, is not the success or failure of a fraudulent scheme but whether one was devised and the mails were used in connection with it, and whether defendant has been fairly tried and fairly convicted, no useful purpose will be served in setting out here the evidence on this point. It will be sufficient to show, as I think I can, in discussing the grounds on which the majority opinion for affirmance is rested, that it was immaterial “whether or not under the circumstances of each transaction, the state at all times had the right to remove the house at will”, that this was greatly material, indeed of the essence of the charge, and that under the *294facts, the houses did not and never could have become the property of the defendant. Because, I think, this holding is greatly conducive to unclear thinking on, and therefore to the use of, the Mail Fraud Statute as a catchall, like the old common law conspiracies were used in England, for convicting persons deemed undesirable on proof not of a definitely formulated plan which was calculated, if carried out, to defraud, but upon proof of their desires or imaginings, I dissent, and will set down as clearly and as briefly as I can, my reasons for dissenting.
The gist of the scheme to defraud, as the indictment stated it, was that defendant “would build houses more elaborate in design and construction than was necessary for wardens’ houses, and that such valuable houses would not and should not be constructed and indeed were not constructed upon lands leased from individuals as was the plan, rule and practice of the highway board but would be and should be and indeed were built upon defendant’s own land to which he had title individually in fee simple, and that said houses and dwellings having become attached to the realty of the defendant, would and should be, and in fact did become, the sole property of the defendant.” To make out a case against defendant under this charge, the United States was required to prove that the houses were placed upon lands of the defendant under conditions making them the property of defendant. If the evidence showed this, a case was made out. If it did not, defendant was entitled to an instructed verdict, on the ground that, under the law of Georgia, the circumstances under which the houses were placed on defendant’s property made them at all times, removable at the will of the state, and prevented their becoming a part of the realty and defendant from obtaining any benefit from them. These circumstances, established by the undisputed testimony of defendant and the two wardens who caused the houses to be built and lived in them, are that they were placed on defendant’s property for the use of the state and under an agreement and understanding that they were subject to removal at the state’s will.
Defendant moved for a directed verdict and in the alternative, for special charges submitting his defense, that if the houses were placed on his property, under an agreement that they were removable, such placing was not and could not be fraud.1 The District Judge refused these requests and the majority affirmed their refusal on the ground that it was wholly immaterial; “whether or not under the circumstances of each transaction, the state at all times had the right to remove the house at will”; and, “whether appellant’s statement in conversation with the wardens to the effect that the houses were removable by the Board would be considered a binding agreement between Glover and the Board which would create an easement in favor of the Board under the real property law of Georgia”.
In so holding, the court erroneously held, in effect, that it-was not necessary for the state to prove the existence of the scheme it had alleged, or indeed any scheme calculated to defraud; it was sufficient if the jury believed not that defendant had, as charged, devised a scheme to place the houses on his land under such conditions that he would acquire the title thereto, but had, with an evil hope and wish not exhibited in the scheme he charged but en*295tertained in his heart that the state might forget or fail to take the houses off, permitted the wardens to build more expensive houses on his land than had been built on the land of others from whom permission to build houses had been obtained.
This will not at all do. There are no common law crimes against the United States, United States v. Eaton, 144 U.S. 677, 12 S.Ct. 764, 36 L.Ed. 591; Norton v. United States, 9 Cir., 92 F.2d 753, 756. “Regard is always to be had to the familiar rule that one may not be punished for crime against the United States unless the facts shown plainly and unmistakenly constitute an offense within the meaning of an act of Congress.” Donnelley v. United States, 276 U.S. 505, 48 S.Ct. 400, 401, 72 L.Ed. 676. Under the statute2 in question, the indictment is fatally defective if it charges the offense in general language without disclosing the particulars of the scheme or artifice. It must plead facts disclosing the scheme with such certainty as to clearly inform the defendant of the charge made against him and the nature of the evidence to be produced in proof of its execution, and these facts must be proved. United States v. Hess, 124 U.S. 483, 8 S.Ct. 571, 31 L.Ed. 516; Etheredge v. United States, 5 Cir., 186 F. 434; United States v. Goldman, D.C., 207 F. 1002; Id., 6 Cir., 220 F. 57. The particulars of the scheme are matters of substance, must be set forth with sufficient certainty to acquaint the defendant with the charges against him and must be proved substantially as alleged. Savage v. United States, 10 Cir., 270 F. 14; Gardner v. United States, 8 Cir., 230 F. 575. While therefore, it is true that mailing is an essential element in the offense, it is equally true that a fraudulent scheme is an essential element in the crime of using the mails to defraud, Aiken v. United States, 4 Cir., 108 F.2d 182, and that the failure to allege a scheme to defraud and to prove it substantially as alleged, is fatal to the prosecution. As used in the statute, “The words ‘to defraud’ * * * primarily mean to cheat, that they usually signify the deprivation of something of value by trick, deceit, chicane, or overreaching.” Fasulo v. United States, 272 U.S. 620, 47 S.Ct. 200, 201, 71 L.Ed. 443. This is not to say of course that for a conviction a scheme to defraud must be successful. The contrary has heen too clearly and too often held. Hill v. United States, 4 Cir., 73 F.2d 223; Norton v. United States, 9 Cir., 92 F.2d 753, 755.
The majority opinion is therefore correct in stating that a scheme to defraud is not required to be reasonable, practical, or successful. It is to say though, that unless there is a scheme, that is, acts planned which if carried out, would defraud, there is no scheme to defraud. “Intent to defraud is an essential element of the offense. The person devising the fraudulent scheme must intend in some manner to delude the person upon whom the scheme is to be practiced. There can be no intent to deceive where it is known to the party making the representations that no deception can result.” Norton v. United States, supra, 92 F.2d at page 755.
Here, the charge was that defendant, relying upon a settled practice of the Board to place the houses on the properties under conditions which would attach them to the realty and to leave them on the properties when the wardens were through with their use, schemed to place houses on his own lands under circumstances which would make them a part of the realty and therefore his property. The uncontradicted proof that there was no such practice on the part of the Board and particularly that the houses were placed on the defendant’s property under circumstances which, under the law of Georgia, prevented their becoming attached to the realty or in any way becoming his, completely negatived the charge and entitled the defendant to an instructed verdict of acquittal. But if it be contended that though both the defendant and the wardens who caused the houses to be built and, lived in them swore that they were placed on the lands with the understanding that they were to be removed, the jury might have disbelieved this evidence, certainly the defendant was entitled to have this specific defense submitted to the jury under the charges he requested. Notwithstanding defendant’s explanation that not he but the wardens determined the kind of houses to be built, the fact that the two houses placed on defendant’s land were better constructed and cost some more than the warden’s houses placed on lands of others, would, but for the proof establishing that under no conditions would the houses become his, tend to support the charge that he had planned to get the houses by placing them on his land. Because of this testimony, as to the cost of the *296houses, if appellant was not entitled to a directed verdict, it was of the greatest importance to his defense to have the question whether they were placed on his property under an agreement for their removal, submitted as he requested.
The function of reviewing courts is of course to affirm where a case has been fairly tried and no substantial error has been shown, but its function to reverse, when the contrary is made to appear, is as compelling.3 Of the opinion that that is the case here, I dissent from the affirmance of the judgment.
“There is evidence in this case to the effect that the defendant on trial, who was Supervisor of State Convict Forces of the State of Georgia, gave to wardens in charge of certain convict camps, authority to place buildings for the State Highway Department on lands belonging to the defendant and the right to remove said buildings at any time the State Highway Department saw fit.
“I charge you that if the defendant gave the wardens such permission and the wardens acting for the State Highway Department of Georgia entered upon lands of the defendant and constructed buildings thereon, and in so doing the State Highway Department incurred expense that the State Highway Department would have the right to use said land for the purpose of placing the buildings thereon and the right to remove said buildings at any time they saw fit.”
“If the defendant gave to the wardens of the State Highway Department, at the convict camps located in the Counties of Millnes, Dawson and Dade, permission to ■use the lands of defendant for the purpose of placing thereon buildings and gave to the State Highway Board of Georgia the right to remove said buildings at any time they saw fit, through the wardens themselves, the permission given to the wardens would have the same effect as if the permission was given directly to the State Highway Board of Georgia.”
18 U.S.C.A. § 338.
Grimsley v. United States, 5 Cir., 50 F.2d 509, 511.