Belden

(after stating the facts as above). [ 1 ] The first and twenty-first assignments of error challenge the suffi.■ciency of the indictment. The statute under which the indictment is drawn provides that:

The simple elements of the offense consist in having devised or intending to devise a scheme to defraud, and in executing or carrying into effect such scheme or artifice by placing or attempting to- place a letter, postal card, etc., in the post office to be sent or delivered through the post office establishment of the United States. It is said that the misuse of the mails is the gist of the offense, or, as expressed by another court, is the “material thing” or “substance of the offense,” while, of course, it must be in execution or attempted execution of a scheme or artifice to defraud. Both elements must be present, while it is the misuse of the mails for the execution of such a scheme that is denounced. Marrin v. United States, 167 Fed. 951, 955 , 93 C. C. A. 351 , Gould v. United States, 209 Fed. 730, 733, 734 , 126 C. C. A. 454 .

Under the old section 5480, R. S., it was requisite that three matters of fact be charged in the indictment, namely: (1) That the person charged had…