Joseph McKenna

“ Section 5480 provided: 'If any person having devised, or intending to devise, any scheme or artifice to defraud . . . to be effected by either opening or intending to open correspondence or communication with any person, whether resident within or outside the United States, by means of the Postoffice 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 [effecting] and for executing such scheme . ”

“ The second count in the indictment charges defendant with having devised 'a scheme and artifice for obtaining moneys, goods, and chattels by means of false and fraudulent representations and promises from various banks, persons, firms, and corporations.' The manner and means are charged as in the first count. ”

“ It is not an unlawful scheme unless the use of the mails was a part of the scheme, and the indictment must affirmatively allege every fact necessary to constitute the offense sought to be charged, that the court may see that an unlawful scheme has been devised. It is alleged that said statements were false and fraudulent, and that they were sent through the mails to Hollingshead & Campbell, from which it might be implied that such was a part and intention of the scheme.' The court further said that implication of a material and essential fact could not supply the place of its direct averment ”