(dissenting).
I agree that the indictment sets up an offense under the statute, however weird and unusual the alleged scheme to defraud may appear to be. I likewise agree that the proofs tending to support the use of the mails, although meager, are sufficient. I cannot, however, agree that the proofs purporting to support the alleged scheme to defraud are sufficient to sustain the judgment. *The alleged scheme to defraud set forth in the indictment is to the effect that the defendant, previous to the carrying out of the transactions, involved, would first have Biles take over the Hunter and Holding company notes together with that of the defendant and then induce Biles to exchange the Hunter notes for the personal note of the defendant which he (the defendant) did not intend to pay. All the elements above outlined are necessary to eon- ' stitute the scheme to defraud, else the indictment must fall. While there is proof that the defendant did certain aets which it may be conceded resulted in the loss of $2,500 to Biles; yet in my opinion there is,an utter lack of evidence which in any way tends to support the charge that, prior to the beginning of the transactions between Biles and the defendant, the defendant had in mind that portion of the alleged scheme to subsequently substitute his own note for' the Hunter notes in the hands of Biles. Nor do I find anything in the evidence which will permit a reasonable inference of this kind to be drawn. ■ On the other hand, the evidence tends to show, as I read it, that, after the Hunter deal fell through and it became desirable to return the Hunter notes, the defendant then and only then conceived the idea of substituting his own note for the purpose of getting the Hunter notes back. Therefore the proof would seem to fail in supporting an integral part of the charge set-forth in the indictment. Each essential element of the charge laid in an indictment must be proved beyond a reasonable doubt.
Nor in my opinion, does it do to say that that portion of the scheme to substitute the defendant’s note for the Hunter notes in the hands of Biles may have been devised later, for the reason that it would be a substantial variance from the charge laid in the indictment, and also for the reason that there is no proof tending to show that the Hunter notes sold to Biles by the defendant were not good and collectable at the time they were sold, but affirmative proof that the defendant had the right to dispose of them. The manner or method in which he was to account for the proceeds had nothing to do with their negotiability or with their validity as evidence of indebtedness in the hands of Biles. The first part of the alleged scheme to defraud by selling the Hunter notes to Biles, assuming as we must that these notes were valuable and that the defendant had the right to dispose of them, because there is in the record no evidence to the contrary, ivas not, standing alone, a scheme to defraud in any respect, and it takes the latter element of the alleged *201substitution in which alone the mails were used to constitute any crime whatever under the statute. Certainly the chief and substantial element of a scheme to defraud cannot be an afterthought.
For the reasons stated, I feel impelled to dissent from the conclusion of the majority.