defendant's remaining acreage in the Buck Creek oil field. A conveyance of such oil and gas leases was not a performance of the contract, and it is also alleged in the complaint that McKim, who acted under the contract as defendant's agent in the selection, grossly abused his discretion and violated his trust in making it. No insuperable obstacle, either at law or in equity, to the enforcement of the specific performance of this contract, is perceived, and the decree below must be reversed, and the case must be remanded to the court below, with directions to permit the defendant to answer, and to take further proceedings in accordance with the views expressed in this opinion; and it is so ordered. SAVAGE v. UNITED STATES.* (Circuit Court of Appeals, Eighth Circuit. December 28, 1920.) No. 5549. 1. Indictment and information 203-One valid count, sufficient to sustain sentence, prevents reversal for defective indictment. A conviction will not be reversed for error in overruling the motion to quash the demurrer to the indictment, which contained 15 counts, on all of which defendant was convicted, if any count was valid, and the sentence imposed did not exceed that which could have been imposed on conviction of any one count. 2. Post office ~48 (4) —Indictment for fraud need not allege organization of partnership, whose name defendant appropriated. Under Rev. St. Colo. 1908, § 4778, as construed by the Supreme Court of that state, the failure of a partnership to file the affidavit of organization therein required does not prevent it from doing business, and therefore an indictment for using the mails in furtherance of a fraudulent scheme to form a corporation having the same name as the partnership, and purchase goods from those relying on the partnership's credit, need not allege that the partnership was duly organized. 3. Criminal law 1186 (4)-Failure to allege organization of partnership, whose name was appropriated, held not prejudicial. Where the substance of the fraudulent scheme charged was not the mere use of the corporate name similar to the name of an existing partnership association, but its use to obtain the benefit of the credit and reputation of the partnership, to obtain goods intended for the partnership, failure to allege that the partnership, then doing business and in actual operation, was duly organized, did not prejudice the defendant, so as to make the. indictment fatally defective, in view of Rev. St. § 1025 (Comp. St. § 1691). 4. Post office 48 (4)-Particulars of scheme to defraud need not be alleged with same certainty as mailing letter. In an indictment for use of the mails in furtherance of a scheme to defraud, the particulars of the scheme are matters of substance, and must be set forth with sufficient certainty to acquaint the defendant with the charge against him; but the gist of the offense is the mailing of the writing, in pursuance of the scheme, so that the scheme need not be pleaded with the certainty as to time, place, and circumstance required in charging the gist of the offense. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Rehearing denied May 19, 1921. · (270 F.) 5. Post office ~35-Use by corporation of name of partnership held fraudulent scheme. The mailing of letters in furtherance of a scheme to defraud, by forming a corporation having the same name as a partnership, and thereby obtaining the credit and reputation of the partnership, is not disproved by the fact that the letter mailed was on a letter head having the word "(Inc.)" after the name, and giving the true address of the corporation, where it was signed merely by the association name, since it is unnecessary to allege or prove that the letters mailed in furtherance of a scheme to defraud were calculated to be effective in carrying out the scheme. 6. Criminal law 1149-Denial of bill of particulars not reviewable. A motion by accused for a bill of particulars is addressed to the discretion of the court, and ordinarily his denial thereof is not reviewable. 7. Criminal law ~1054 (3)—Insufficiency of evidence may be reviewed without exception. Even though no exception was taken to the denial of defendant's motion for a directed verdict, the evidence can be examined on writ of error to see whether there is substantial evidence to support the conviction. 8. Criminal law 1175-Evidence to sustain any count authorizing sentence is sufficient. Where accused was convicted on all 15 counts of the indictment against him, and the sentence could have been imposed for conviction on any one of the counts, the conviction will not be reversed for insufficiency of the evidence, if there is sufficient evidence to sustain any one count. 9. Post office 35-Acts held to constitute fraudulent scheme, furthered by use of mails. That defendant, after being informed that a partnership association had an exclusive contract to handle a certain manufacturer's goods, formed a corporation having the same name as the association, and ordered goods from the manufacturer, directing them to be shipped to the corporation's address, and thereafter failed to pay for the goods, showed a fraudulent scheme by defendant, warranting conviction for using the mails in furtherance thereof. 10. Post office 49-Evidence held to show corporate transactions were for defendant's scheme. In a prosecution for using the mails in furtherance of a scheme to defraud, evidence that the corporation which obtained the goods was formed by accused and two others, neither of whom had any interest therein, and that accused was solely in charge of the business, held to warrant the jury in believing that defendant was the designed beneficiary of the fraudulent transactions. 11. Criminal law 1129 (4)-Assignments of error in admitting groups of testimony or exhibits are not proper. An assignment of error in the admission in evidence of a portion of the testimony of 7 different witnesses relating to different subjects, and an assignment of error in admitting in evidence 100 different exhibits, violate Circuit Court of Appeals rule 11 (150 Fed. xxvii, 79 C. C. A. xxvii), requiring each error to be set out separately and particularly. 12. Criminal law 1036 (4), 1054 (1)—Admission of evidence without objection or exception cannot be reviewed. Assigned error in admitting testimony concerning a contract, without having the contract in evidence, does not require reversal, where no objection was made at the trial with reference to the testimony as to one exhibit, and no exception as to the court's ruling on the other exhibits. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 13. Criminal law 1169 (4)-Admission of testimony concerning exhibits thereafter introduced is not error. Admitting testimony, over objection that it was concerning an exhibit not yet in evidence, was not error, where the exhibit was offered and received in evidence after a few more questions, and before the cross-examination of the witness. 14. Criminal law 402 (2)-Copies of writings in defendant's hand admissible, without demand for originals. In a prosecution for using the mails to defraud, copies of writings, the originals of which were shown to have been in the possession or aerenaant or the companies controlled by him, could be given in evidence, without the defendant being notified to produce the originals. 15. Post office 49-Defendant held to have made bank agent for mailing draft. In a prosecution for mailing a draft in furtherance of a scheme to defraud, evidence that defendant's employé, by his direction, signed the draft as an officer of the corporation controlled by defendant, and that it was deposited in the bank where the corporation kept an account, and by the bank sent by mail to another bank for presentation to the drawee, with evidence showing similar general method of doing business by the use of sight drafts deposited, to be sent through the mails for collection, shows that the draft was intrusted to the mails by the bank at the instance and request of defendant, and is sufficient. 16. Criminal law ~762 (5) —Court may express opinion defendant is guilty. A statement by the court in his instructions that he was of opinion defendant was guilty on all but four counts, with repeated statements that was a mere opinion, and that the jury should follow its own judgment, and disregard the court's opinion, if they were of a contrary opinion, was not error. 17. Criminal law 1059 (2)-General exception to charge insufficient, if any portion is correct. Error cannot be predicated on a general exception to the charge of the court in a criminal prosecution, where any part of the charge was correct. In Error to the District Court of the United States for the District of Colorado; Robert E. Lewis, Judge. John A. Savage was convicted of using mails with intent to defraud, and he brings error. Affirmed. William H. Dickson, of Denver, Colo., for plaintiff in error. Otto Bock, Asst. U. S. Atty., of Denver, Colo. (Harry B. Tedrow, U. S. Atty., of Denver, Colo., on the brief), for the United States. Before SANBORN and CARLAND, Circuit Judges, and MUNGER, District Judge. MUNGER, District Judge. The plaintiff in error (hereafter called defendant was convicted of a violation of section 215 of the Penal Code (Comp. St. § 10385). The indictment contained 15 counts. Four different schemes were alleged, with a charge in each count of the mailing of a letter or other writing in the attempted execution of the scheme. In each count it was charged that the defendant devised a scheme to defraud by planning to incorporate a company under the laws of Colorado, adopting as its name the firm name of an existing unincorporated partnership or association then doing business, and in op For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (270 F.) eration, buying and selling merchandise, of which latter company defendant would not be a member and in which he would have no interest, and further planning to have stationery and letter heads printed bearing the name of the unincorporated company. Some of the counts aver that the defendant also planned to ascertain from whom the unincorporated association purchased goods, and then through letters, telegrams, and other means of communication to receive merchandise not intended for him, and for which he would not pay but would convert to his own use. Other counts charged a plan to obtain goods without paying for them, without averring that the persons to be defrauded had previously sold goods to the unincorporated company. Other counts charged plans to have the mail intended for the unincorporated company diverted to his company, and thereby to ascertain to whom the unincorporated company had made shipments of goods, and then to obtain control of such merchandise and to obtain payment for it himself; the remaining counts charged a plan to obtain possession of checks and negotiable instruments belonging to the unincorporated company, and then to convert them and their proceeds to his own use. The defendant was found guilty under each count of the indictment, and a single sentence was imposed. [1] The defendant contends that it was error to overrule his motion to quash, and his demurrer to, the indictment. No exception was taken to the ruling of the court, but independently of this the sentence imposed did not exceed that which could have been rendered upon conviction under any count of the indictment, and therefore there would be no reversible error, if one of the 15 counts stated an offense. Claasen v. United States, 142 U. S. 140, 146, 12 Sup. Ct. 169, 35 L. Ed. 966; Evans v. United States, 153 U. S. 608, 609, 14 Sup. Ct. 939, 38 L. Ed. 839; Abrams v. United States, 250 U. S. 616, 619, 40 Sup. Ct. 17, 63 L. Ed. 1173; Pierce v. United States, 252 U. S. 239, 40 Sup. Ct. 205, 64 L. Ed. 542; Doe v. United States, 253 Fed. 903, 904, 166 C. C. A. 3; United States v. Lair, 195 Fed. 47. 50, 115 C. C. A. 49; Haynes v. United States, 101 Fed. 817, 819, 42 C. C. A. 34. [2] It is said that no scheme to defraud was stated, because it was not alleged that the unincorporated partnership or association whose name the defendant would adopt as a corporate name for his incorporation, was a duly organized partnership or association. In support of this contention is cited section 4778 of the Revised Statutes of Colorado (1908), which provides that such associations shall file with a county officer an affidavit setting forth the full names and addresses of all persons so represented, and that in default of such filing the association shall not be permitted to sue for the collection of debts, and the person in default shall be guilty of a misdemeanor. The penalties thus imposed are limited, and do not expressly deprive the associations of the right to transact business, and as interpreted by the Supreme Court of Colorado, the statute is to be strictly construed and does not embrace any penalty except those provided by the terms of the act. Wallbrecht v. Blush, 43 Colo. 329, 332, 95 Pac. 927. [3] Moreover the substance of the scheme charged was not the 270 F.-2 mere use of a corporate name similar to the name of an existing association, but to use it so as to have the credit and reputation of the other company in order to obtain goods not intended for defendant, and for which he would not pay, and the failure to allege that the unincorporated partnership or association, then doing business and in actual operation, was duly organized, did not prejudice the defendant, and make the indictment fatally defective, in view of the provisions of section 1025, Rev. Stat. (section 1691, U. S. Comp. Stat.). See McClendon v. United States, 229 Fed. 523, 525, 143 C. Č. A. 591. [4] The particulars of the scheme are matters of substance, and must be set forth with sufficient certainty as to its existence and character that the indictment will fairly acquaint the defendant with the scheme charged against him; but the gist of the offense is the mailing of the letter, writing, or article in pursuance of the scheme, and the scheme itself need not be pleaded with all the certainty as to time, place, and circumstance that is required in charging the gist of the offense, the mailing of the matter in execution or attempted execution of the scheme. Colburn v. United States, 223 Fed. 590, 592, 139 C. C. A. 136; McClendon v. United States, 229 Fed. 523, 525, 143 C. C. A. 591; Gardner v. United States, 230 Fed. 575, 578, 144 C. C. A. 629; MacKnight v. United States (C. C. A.) 263 Fed. 832, 837. [5] It is urged that some counts of the indictment do not state an offense, and no offense under them was proved, because the letters set out in the indictment and given in evidence bore a heading which read "The Rocky Mountain Purchasing Association (Inc.), 311 Ideal Building, Denver, Colorado," and that the words "the," the abbreviation "(Inc.)" and the address "311 Ideal Building" showed no intent to defraud as it clearly indicated that the defendant's company, and not the unincorporated company, was transacting the business. But the letters are signed by the same name as that of the unincorporated association, and the contents of the letters are such as might readily lead the addressees to believe they were dealing with the unincorporated association. It is not necessary to allege or to prove that the letters mailed in pursuance of the scheme to defraud under this section of the Penal Code are calculated to be effective in carrying out the scheme. Durland v. United States, 161 U. S. 306, 315, 16 Sup. Ct. 508, 40 L. Ed. 709; Lemon v. United States, 164 Fed. 953, 957, 90 C. C. A. 617. There are 4 counts, numbered 11, 12, 13, and 15, which set out writings in which appear only the name "The Rocky Mountain Purchasing Association," and count 14 alleges a writing setting out the name "Rocky Mountain Pur. Ass'n." We see no reason for holding the indictment invalid, because of any of the objections urged. [6] It is assigned that the court erred in refusing the defendant's motion for a bill of particulars, but such a motion is addressed to the discretion of the court and ordinarily is not reviewable (Dunlop v. United States, 165 U. S. 486, 491, 17 Sup. Ct. 375, 41 L. Ed. 799: Knauer v. United States, 237 Fed. 8, 13, 150 C. C. A. 210; Horowitz |