(after stating the facts as above).
[1,2] The law is well settled that a judgment in a criminal case will, after conviction, be arrested only for matter appearing of record which would render the judgment erroneous if given: the evidence being no .part of the record for such purpose. The rule in civil cases, that the matter alleged on arrest must be such as would have been sufficient .on demurrer to overturn the action or plea, also applies to criminal cases. Wharton’s Crim. PI. & Prac. (8th Ed.) § 759; Sadler’s Crim. Proc. § 516; Clement v. United States, 149 Fed. 305, 79 C. C. A. 243; United States v. Marrin (D. C.) 159 Fed. 767, affirmed 167 Fed. 951, 93 C. C. A. 351.
_ [3] To sustain the first ground of the motion it is urged that a mere agreement to violate the laws of the United State? is not sufficient to constitute a conspiracy within the meaning of'section 37 of the Penal Code, but that it is necessary to further chárge in the indictment that they actually did devise the scheme to defraud the party alleged in the indictment. It is admitted that the part of the indictment stating the specific acts of the parties which constitute the offense shows that they did actually enter upon the scheme to defraud and tried to carry it out by committing an overt act; but it is claimed that that is not sufficient, that it niust be in the charging part of the indictment, or, as counsel say, the indictment should have charged “that the defendants conspired and did commit the offense of attempting to defraud.” This contention is clearly untenable. In Stokes v. United States, 157 U. S. 187, 190, 15 Sup. Ct. 617, 619 (39 L. Ed. 667) the contention was that “the allegation is not what was actually done, but of what the defendants conspired and intended to do,” but it was held that that was sufficient.
To sustain the second ground, counsel rely upon what was determined in Stokes v. United States, supra, and the numerous cases of the different United States Circuit Courts of.Appeal which followed that decision. Miller v. United States, 133 Fed. 337, 66 C. C. A. 399; Thomas v. United States, 156 Fed. 906, 84 C. C. A. 486, 17 L. R. A. (N. S.) 720; Brown v. United States, 146 Fed. 219, 76 C. C. A. 577; Brooks v. United States, 146 Fed. 223, 76 C. C. A. 581; Horn v. United States 182 Fed. 721, 105 C. C. A. 163; Rimmerman v. United States, 186 Fed. 307, 108 C. C. A. 385-where it was held that in order to constitute the offense of using the mails for the purpose of devising a scheme to defraud it is necessary to charge:
(1) “That the person, charged devised the scheme to defraud."
(2) “That they intended to effect this scheme by opening or Intending to open correspondence with some other person through the post office establishment, or by inciting such other person to open communication with them.”'
(3) “That in carrying out such scheme such person must have either deposited a letter or package in the post office, or taken or received one therefrom.”
(4) But a careful reading of the indictment shows that it is specifically charged that the fraudulent scheme was to be effected by the use of the mails of the United States. . The indictment, in describing the manner in which the offense was committed, charges:
“And to cause the said proofs of death to be forged and fabricated, and to forward the same through the mails of the United States, and to cause the • *1001same to be so forwarded to the said corporation for the purpose of soliciting and obtaining payment of the said policies.”
But it' is contended that the intention to perpetrate the fraud must be alleged in that part of the indictment which charges the commission of the offense, and it is not sufficient to allege it in the descriptive part of the indictment. This contention is without merit. It is sufficient if it is charged in any part of the indictment. In Lemon v. United States, 164 Fed. 953, 90 C. C. A. 617, the indictment, which is not set out in full in the opinion of the court, has been examined, and is found to be in effect drawn as this is. It was attacked upon the same ground, but held to be sufficient; but, even had that been entirely omitted, the omission would not be fatal. . ' •
[5] All the authorities upon which counsel rely were decided prior to the adoption of the Penal Code, and while section 5480, Rev. St., as amended by Act March 2, 1889, c. 393, 25 Stat. 873 (U. S. Comp. St. 1901, p. 3696), was in force, while the acts charged in this indictment were committed since the Penal Code is in force. The old statute, in force prior to the enactment of the Penal Code, specifically required the three ingredients above set out to constitute the offense, while the Penal Code omits the second ingredient set out in the foregoing quotation. In order that this may appear clearly, both statutes, in so far as they are necessary to an understanding of this question, are set out in parallel columns:
Act March 2, 1889.
“If any person having devised or intending to devise any scheme or artifice to defraud, * * * to be effected by cither the openin'/ or intending to open correspondence or communication with any person, 'whether resident within or without, the United Btat.es, by means of the post office establishment of the United States, or by inciting such other person or any 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 or cause to be placed any letter, package, writing, circular, pamphlet or advertisement in any post office, branch post office or street or hotel letter box of the United States, to be sent, or delivered by tlie said post office establishment,” etc.
Section 215, Penal Oode.
“■Whoever having devised or intending to devise any scheme or artifice to defraud * * * shall for the purpose of executing such scheme or artifice or attempting so to do, place or cause to be placed any letter, postal c-ard, package, writing, circular, pamphlet or advertisement, whether addressed to any person residing within or without the United States in any post office or station thereof, or street or other letter box of the United States, or authorized depository for mail matter to be sent to or delivered by the post office establishment of the United. States,” etc.
It will he noticed that the words of the act of March 2, 1889, in italics are entirely omitted from section 215 of the Penal Code; that section only requiring, to complete the offense, two things: First, that a fraudulent scheme to defraud be devised; and, second, that for the purpose of executing it that there be placed or caused to be placed any letter, postal card, etc., in any post office or station thereof, or street or other letter box of the United States, or authorized depository for *1002mail matter to be sent or delivered by the post office establishment of the United States.
[6] The indictment charges in plain language both of those acts, and, as this is a statutory offense, it is only necessary to charge the commission of those acts which the statute declares shall constitute the offense. Armour Packing Co. v. United States, 153 Fed. 1, 82 C. C. A. 135, 14 U. R. A. (N. S.) 400, affirmed 209 U. S. 56, 28 Sup. Ct. 428, 52 L. Ed. 681; May v. United States (C. C. A.) 199 Fed. 53.
The motion in arrest of judgment must be overruled.