Messrs. James H. Harkless, D. R. Hite, and Clifford Histed for plaintiff in error.
[240 U.S. 391, 393] Assistant Attorney General Wallace for defendant in error.
Mr. Justice Holmes delivered the opinion of the court:
The case is brought to this court from the district court under 238 of the Judicial Code, act of March 3, 1911, chap. 231, 36 Stat. at L. 1087, Comp. Stat. 1913, 1215, on the ground that it involves the construction and application of the Constitution of the United States. The plaintiff in error was indicted for placing letters in the mail for the purpose of executing a scheme to defraud devised by him, in violation of 215 of the Criminal Code, act of March 4, 1909, chap. 321, 35 Stat. at L. 1088, Comp. Stat. 1913, 10,385. There were twelve counts, on seven of which, each relating to a different letter, he was found guilty. He was sentenced to five year's imprisonment on each count, the periods being concurrent, not cumulative, and also to a fine of $1,000 on each or $7,000 in all. The grounds for coming to this court are, first, that 215 of the Criminal Code is beyond the power of Congress, as applied to what may be a mere incident of a fraudulent scheme that itself is outside the jurisdiction of Congress to deal with; and second, that if it makes the deposit of each letter a separate offense, subject to such punishment as it received in this case, it imposes cruel and unusual punishment and excessive fines.
These contentions need no extended answer. The overt act of putting a letter into the postoffice of the United States is a matter that Congress may regulate. Ex parte Jackson, 96 U.S. 727 , 24 L. ed. 877. Whatever the limits to the power, it may forbid any such acts done in furtherance of a scheme that it regards as contrary to public policy, whether it can forbid the scheme or not. Re Rapier, [240 U.S. 391, 394] 143 U.S. 110, 134 , 36 S. L. ed. 93, 102, 12 Sup. Ct. Rep. 374; Public Clearing House v. Coyne, 194 U.S. 497, 507 , 48 S. L. ed. 1092, 24 Sup. Ct. Rep. 789; United States v. Stever, 222 U.S. 167, 173 , 56 S. L. ed. 145, 147, 32 Sup. Ct. Rep. 51. See Lottery Case (Champion v. Ames) 188 U.S. 321, 357 , 47 S. L. ed. 492, 501, 23 Sup. Ct. Rep. 321, 13 Am. Crim. Rep. 561; United States v. Holte, 236 U.S. 140, 144 , 59 S. L. ed. 504, 505, L.R.A. 1915D, 281, 35 Sup. Ct. Rep. 271. Intent may make an otherwise innocent act criminal, if it is a step in a plot. Aikens v. Wisconsin, 195 U.S. 194, 206 , 49 S. L. ed. 154, 160, 25 Sup. Ct. Rep. 3; Swift & Co. v. United States, 196 U.S. 375, 396 , 49 S. L. ed. 518, 524, 25 Sup. Ct. Rep. 276. The acts alleged have been found to have been done for the purpose of executing the scheme, and there would be no ground for contending, if it were argued, that they were too remotely connected with the scheme for the law to deal with them. The whole matter is disposed of by United States v. Young, 232 U.S. 155, 161 , 58 S. L. ed. 548, 551, 34 Sup. Ct. Rep. 303. As to the other point, there is no doubt that the law may make each putting of a letter into the postoffice a separate offense. Ebeling v. Morgan, 237 U.S. 625 , 59 L. ed. 1151, 35 Sup. Ct. Rep. 710; Re Henry, 123 U.S. 372, 374 , 31 S. L. ed. 174, 175, 8 Sup. Ct. Rep. 142. And there is no ground for declaring the punishment unconstitutional. Howard v. Fleming. 191 U.S. 126, 135 , 48 S. L. ed. 121, 124, 24 Sup. Ct. Rep. 49; Ebeling v. Morgan, supra.
The other matters discussed are before us only as incident to the constitutional questions upon which the case was brought here. As those questions merely attempt to reopen well established and familiar law, it is not necessary to go beyond them. Brolan v. United States, 236 U.S. 216, 222 , 59 S. L. ed. 544, 549, 35 Sup. Ct. Rep. 285. There is the more reason for declining further consideration in the extravagant and unnecessary multiplication of exceptions and assignments of error that often has been condemned by this court. Central Vermont R. Co. v. White, 238 U.S. 507, 509 , 59 S. L. ed. 1433, 1435, 35 Sup. Ct. Rep. 865, 9 N. C. C. A. 265. If there were anything in the objections to the indictment, they are not of a kind to involve constitutional rights (Lamar v. United States, 240 U.S. 60 , 60 L. ed. --, 36 Sup. Ct. Rep. 255), although the argument attempts to give a constitutional turn to them and to other technical complaints, such as that the judge was absent during a part of the deliberations of the grand jury. We find no error in this or the other particulars mentioned in argument. [240 U.S. 391, 395] Jones v. United States, 89 C. C. A. 303, 162 Fed. 417, 421, s. c. 212 U.S. 576 , 53 L. ed. 657, 29 Sup. Ct. Rep. 685; Com. v. Bannon, 97 Mass. 214, 220. See Breese v. United States, 226 U.S. 1, 11 , 57 S. L. ed. 97, 102, 33 Sup. Ct. Rep. 1. As to the arraignment, see Garland v. Washington, 232 U.S. 642, 646 , 647 S., 58 L. ed. 772, 775, 776, 34 Sup. Ct. Rep. 456. We deem it unnecessary to go into further detail.