(after stating the facts as above). In disposing of this motion for a new trial, I wish to say this: In the beginning of the case, and during the trial, the doubt I had about the case was whether or not, under the facts, it came within the statute aimed at the use of the United States post office establishment to effectuate and carry out a scheme to defraud. It is necessary, under this statute, that the scheme to defraud should be one which contemplated the use of the post office establishment to effectuate it, and it is not sufficient that the use of the mails was a mere incident to some fraudulent scheme. I considered this matter carefully as the trial went on, and became satisfied that, under the statute and under the authorities construing and applying it, a case was made for submission to the jury. It was submitted to the jury, and the jury found the defendant 'guilty on the third count in the indictment.
After careful consideration of the matter, I do Hot believe that there is any reason for setting aside the verdict, nor, in my judgment, is the newly discovered evidence sufficient to justify the granting of a new trial. The evident purpose of -the advertisements was to elicit correspondence through the United,States mails, and it had this result, so that there seems to be a case wholly within the statute, if the jury believed it well proven, as they evidently did.
The court instructed the jury as follows:
“You will have observed from the reading of this statute that there are three ingredients in this offense: First, the devising or intending to devise a scheme or artifice to defraud; second, such scheme or artifice to defraud to be effected by opening or intending to open correspondence with any person *805or persons, or by inciting the other person to open communication with the person so devising or intending; and, third, for the purpose of executing or carrying into effect such scheme, actually placing a letter in the mails.
“It must lie a scheme to defraud which contemplates the use of the post office establishment of the United States to effectuate it. A mere scheme to defraud, by itself, would not be a matter cognizable in. tbe courts of the United States. It is the intent and design to accomplish the scheme, or effectuate it, by the use of the post office establishment, and then by the deposit of the letter in the mails, in pursuance of this scheme and intent, and to consummate it. It may be done, also, as you will have perceived from the language of the statute, by inciting others to open correspondence through the mails with the party so intending and designing to carry out a fraudulent scheme or artifice by the use of the mails.”
I think this was a fair statement of the law and a liberal statement of it to the defendant. The jury being satisfied that the evidence made a case under these instructions, and the other portions of the charge which it is unnecessary to refer to now, the verdict should stand.
An order may be entered overruling the motion for a new trial.