large sum of money on a foot racer by the name of Stansbury, and another man, by the name of Boatright, who would wager a large sum of money that he (Gillett) could beat Stansbury in a foot race; that Ellis would not bet with Boatright, because the latter knew how fast Stansbury could run, but that, if a stranger like Davis came along, Ellis could be induced to bet with him. He accordingly proposed that Davis should go to Webb City and make a bet with Ellis, telling him that Boatright would furnish the money, and allow him (Davis) 25 per cent. of what was won. Davis accordingly went to Webb City, and was there introduced by Gillett to Boatright and to the appellant Stewart, the latter of whom represented to Davis that Boatright was a reputable business man. Davis thereupon made a bet with Ellis, in the sum of $4,400, that Gillett could beat Stansbury; receiving the money wherewith to make the bet from Boatright, who was made stakeholder, and received the money back from Davis as soon as it was loaned. Thereupon Boatright represented to Davis that he had no more money to wager with Ellis upon the result of the intended foot race, but stated to Davis that, if he (Davis) would loan him $5,000, he (Boatright) would wager that further sum with Ellis upon the result of the proposed race. Davis agreed to loan the last-mentioned sum of money to Boatright on condition that the sum loaned should be refunded before the race was run. He accordingly drew a sight draft in the sum of $5,000 on the Bank of Bronson, Kan., where he had money on deposit, which draft was made payable to the order of the appellant, Stewart, who was cashier of a bank at Webb City. Stewart sent the draft to Bronson, Kan., by mail, in a letter addressed to the bank of Bronson, Kan., which requested that bank to forward the proceeds of the draft to Stewart. Boatright then pretended to make an additional bet with Ellis in the sum of $5,000 with the money which he had borrowed from Davis. The day appointed for the race arrived before Boatright had refunded the amount of the loan, and, when the race was being run, Gillett, in the course of the race, fell down, and claimed to have sustained some injury. Thereupon it was agreed that the race should be run over as soon as Gillett recovered from the injuries which he pretended to have sustained. Gillett fell down in the course of the race, and the agreement postponing the race was made to prevent Davis from stopping payment of the draft which he had drawn on the Bank of Bronson. Joseph Cooke, who was president of the Bank of Bronson, on the receipt of the letter containing the Davis draft, wrote a letter to the appellant Stewart, under date of August 5, 1901, wherein, in payment for the sight draft drawn by Davis, he inclosed a draft on the American National Bank of Kansas City in the sum of $5,000, which latter draft was made payable to the order of J. P. Stewart, Cashier. This letter so written by Cooke to Stewart, and deposited in the mail at Bronson, Kan., is one of the letters counted upon in the indictment as constituting an offense under section 5480 [U. S. Comp. St. 1901, p. 3696]. The second count of the indictment was, in substance, the same as the first, except that it counted upon a different letter as constituting the offense; the same being a letter deposited by Davis in the mail at Bronson, Kan., on August 5, 1901, addressed to Boatright, at Webb City, Mo., whereby Davis transmitted a draft of $1,500 to Boatright, and told him to get a like amount from Ellis and deposit it in the bank. The indictment also contained a third count, substantially like the first, except that it counted upon another letter, written by Gillett to Davis, and deposited in the mail at Neal, Kan., on August 20, 1901, after the race had been postponed, wherein Gillett informed Davis that the doctor advised him that his foot, which had been injured, was healing as fast as it possibly could heal, and that he would be able to get his shoe on his foot in a week or ten days.

Edgar E. Bryant (H. C. Mechem and W. R. Robertson, on the brief), for appellant.

John S. Dean, U. S. Atty.

Before SANBORN and THAYER, Circuit Judges, and LOCHREN, District Judge.

THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the court.

The consensus of judicial opinion seems to be that when a United. States commissioner, proceeding under section 1014 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 716], commits a prisoner for removal to a foreign district where the prisoner has been indicted, the prisoner may apply to the federal circuit or district court of the district where he has been arrested for a writ of habeas corpus, and if, on the return to such writ, it appears that he was committed for removal solely on the strength of an indictment found in the foreign district, and without other evidence that a crime has been committed, he may be discharged, provided it appears that the indictment, on the strength of which the commitment was obtained, is essentially and fundamentally defective. A federal judge to whom an application for a warrant of removal is made under section 1014 [U. S. Comp. St. 1901, p. 716], it has been said, "misconceives his duty, and fails to protect the liberty of the citizen," if he issues the warrant solely on the strength of an indictment found in the foreign district, which does not substantially state an offense under federal laws. These propositions have been decided frequently at nisi prius, beginning with the case In re Buell, 3 Dill. 116, 120, 121, Fed. Cas. No. 2,102. See, also, In re Terrell (C. C.) 51 Fed. 213; U. S. v. Brawner (D. C.) 7 Fed. 86; In re James (C. C.) 18 Fed. 853; In re Dana (D. C.) 68 Fed. 886. The practice of issuing a writ of habeas corpus in such cases for the purpose of inquiring into the validity of an indictment on the strength of which a person has been committed to await the issuance of a warrant of removal under section 1014 of the Revised Statutes [U. S. Comp. St. 1901, p. 716] was also sanctioned and approved by the supreme court of the United States in Re Palliser, 136 U. S. 257, 10 Sup. Ct. 1034, 34 L. Ed. 514, and in Horner v. U. S., 143 U. S. 207, 12 Sup. Ct. 407, 36 L. Ed. 126.

In the present case it appears that Stewart, the appellant, was committed for removal solely on the strength of an indictment found in the district court of the United States for the district of Kansas, Third division, without other evidence of his guilt than the allegations contained in the indictment. We proceed to inquire, therefore, whether the indictment was sufficient to justify a warrant of removal. If it was insufficient, the appellant was entitled to be discharged from

arrest.

In framing the indictment in question to meet the requirements of section 5480 [U. S. Comp. St. 1901, p. 3696], under which it was drawn, it was incumbent upon the pleader to allege that the defendants had devised a scheme or artifice to defraud, which was to be effected by opening or intending to open correspondence with some other person by means of the United States mail, or by inciting such other person to open communication with the defendants, or some one of them, and that, in the execution of the scheme so devised, the defendants either placed a letter in a post office of the United States, or took one therefrom. The offense denounced by section 5480 [U. S. Comp. St. 1901, p. 3696] consists either in the placing

of a letter in a United States post office, or in the receiving of one therefrom by a person who is a party to such a scheme or artifice to defraud, as the statute describes. Stokes v. U. S., 157 U. S. 187, 15 Sup. Ct. 617, 39 L. Ed. 667. It was also incumbent upon the pleader to describe the scheme or artifice to defraud which had been devised, with such certainty as would clearly inform the defendants of the nature of the evidence to prove the existence of the scheme to defraud, with which they would be confronted at the trial.

It is to be observed, in the first place, that in so far as the letter mentioned in the first count of the indictment is concerned, namely, the one written by Joseph Cooke, and deposited in the post office at Bronson, Kan., on August 5, 1901, it is not alleged anywhere in the indictment that it was taken from the mail by Stewart or by any of the other defendants; and even if it was so taken from a post office, or if we assume, in the absence of a positive averment to that effect, that it was so taken, the act of receiving it from the post office, which is the act constituting the offense, must have been committed at Webb City, Mo., to which place it was addressed, and not within the district of Kansas, where the offense is laid. The deposit of this letter in the mail by Cooke at Bronson, Kan., did not constitute an offense, because Cooke was not a party to the alleged scheme or artifice to defraud. An offense could only have been committed, as respects this letter, by its being taken from the mail at Webb City by one of the defendants, and the fact that it was so taken is not averred. Besides, if the fact had been averred, this count of the indictment would have shown an offense committed within the Western district of Missouri, rather than in the district of Kansas, where the indictment was found.

The same observations may be made with respect to the letter described in the second count of the indictment, namely, the letter written by Davis, and addressed to Boatright, at Webb City, Mo., under date of August 5, 1901, which was deposited in the mail at Blue Mound, Kan., and is the letter upon which the second count of the indictment is founded. This letter was not deposited in the mail by either of the defendants, nor is it alleged that it was taken from the post office by either of the defendants; and if it be assumed, in the absence of an express averment to that effect, that it was received by Boatright from the post office at Webb City, Mo., then the act constituting the offense was committed within the Western district of Missouri. It is clear, we think, that neither the first nor the second count of the indictment, for the reasons above indicated, alleged an offense against the laws of the United States committed within the district of Kansas.

This leaves for consideration the single question whether the third count of the indictment sufficiently states an offense to warrant the removal of the prisoner to a foreign district. The count in question is based on a letter written by one of the defendants, L. B. Gillett, on August 28, 1901, at Neal, Kan., and deposited in the post office at that place, and addressed to Davis at Bronson, Kan., which letter advised Davis that Gillett's foot was healing as fast as it could. It is noticeable that the act constituting the offense, namely, the deposit of this letter in the post office, though committed in Kansas, was not done by the appellant, Stewart, unless the act of one of the defendants named in the indictment be regarded as the individual act of each. We shall assume, without deciding, that the averment of the indictment showing that the defendants concocted a scheme to defraud is sufficient to establish that the act of either one of the defendants, if done in execution of the scheme, was the act of all, although there is no express allegation in the indictment of a conspiracy among the defendants to commit an offense under section 5480 [U. S. Comp. St. 1901, p. 3696]. Waiving this defect, if it be a defect, it is more important to consider what the scheme or artifice to defraud was, as it is described in the indictment. Certain foot racers, it seems, whose headquarters were at Webb City, Mo., formed a scheme to induce divers and sundry persons to visit Webb City, by entering into communication with them by means of the post-office establishment of the United States. The indictment then avers that the object which they had in view in inducing persons to come to Webb City was to influence them after their arrival to wager, or advance money to be wagered, on "pretended and fraudulent foot races." It is manifest, therefore, that the fraud which was actually practiced consisted of representations made to persons who came to Webb City, and of artifices that were resorted to after their arrival to induce them to wager money, or advance money to be wagered, on fraudulent foot races; but the indictment, in that part which describes the scheme, wholly fails to aver what such representations and artifices were, or were intended to be, when the scheme was formed. Nor does it aver in what respect the foot races were fraudulent, except, in a general way, that they were "prearranged and agreed upon." The sum and substance of the scheme, as alleged in the indictment, is this: That persons were to be induced to come to Webb City, by the use of the mails, in the hope and expectation that after they arrived they could be fleeced by various fraudulent artifices not then conceived or formulated, but which might afterwards be devised to accomplish that end. It is furthermore noteworthy that, as the scheme is described in the indictment, the mails were not the sole means which the defendants intended to employ to induce persons to come to Webb City, for the indictment expressly avers that some of the defendants, namely, Gillett and Stansbury, were to go in person to various places and make the acquaintance of persons who were supposed to be gullible, and, by such fraudulent representations as they saw fit to make, induce them to go to Webb City.

Another observation to be made concerning the indictment is this: That while the fraudulent scheme, as described, was one whereby the mails were to be employed to induce persons to come to Webb City, to be afterwards defrauded, yet the letter which was deposited in the mails by Gillett, on which the third count is founded, does not seem to have been written to accomplish any such purpose, and for that reason it can hardly be said to have been deposited in the mail in execution of such a scheme as the indictment describes. It was written, as it seems, long after Davis had been induced to go to Webb City and after he had wagered his money and sustained all the loss that he could possibly sustain by reason of the alleged fraudulent scheme.

It should be further observed, concerning the indictment as a whole, that it is needlessly long and involved, and that it contains many redundant and immaterial allegations, which defects, when taken together, render it difficult to construe, and almost unintelligible. If it be an offense under section 5480 [U. S. Comp. St. 1901, p. 3696] to use the mails to induce persons to come to a certain place for the purpose of defrauding them by tricks and artifices to be devised after their arrival, then the indictment now under consideration might and should have been made much shorter, more explicit, and more intelligible. We are of opinion that it lacks that certainty of averment which should be found in an indictment or information, and that for this reason, if for no other, it ought to be quashed on a motion to that effect. The result is that the order of the district court discharging the writ of habeas corpus is reversed and the cause is remanded to the lower court, with instructions to discharge the appellant.