The Birmingham age-herald., 1907-12-18
FAULKNER CASE IS
 REVERSED BY COURT
WAS CONVICTED OF FRAUDULENT USE OF MAlLS-JUSTIFlAB ExAGeERATloN WAS GROUND OF THE COURTS REVERSAL.

A decision in the case of the United States against Earnest T. Faulkner has been handed down by the United States circuit court of appeals, at New Orleans reversing the judgment of conviction and remanding the cause for new trial. This case will be we'll remembered here, as having attracted good deal of attention some two or three years ago.
 Faulkner was engaged in the commis- sion business in Birmingham and sent out circulars advertising the fact that he had cold storage plant of good sized proportions, the charge on which he was convicted being to the effect that he had defrauded by claiming to have larger plant that he really had. The decision handed down by the court of appeals practically rules that it was mere- ly case of 'justifable exaggeration.
 The personnel of the court of appeals was Pardee and Shelby, circuit judges, and Burns, district judge. Sterling A. Wood Cred s. Ferguson and Zell Cas- ton, on the brie), represented the plain tiff, and District Attorney Oliver D. Street handled the prosecution.
 The decision reads in part as follows. the circular being first quoted
 "OUR FACILITIES.'
 "We are pleased to inform our patrons of our cold storage arrangements which facilitates us in caring for perishable foods, both farm and sea products. We have a cold air storage capacity of about 12O pounds fresh fish, 200 buckets oysters, 50O cases eggs, 50 barrels poultry, 2000 pounds of butter 300 crates berries and vegetables.
 "rhe storage is thoroughly illuminated, enabling us to display consgnments. We find under this refrigeration that perishable commodities show up fresh and healthy. and naturally sell Ito better advantage.
 "Our policy is prompt services, im- mediate reports, accurate accounts and profitable results. Unless we can benefit our patrons, we can't expect their sup port. Our business is our capital; we appreciate 1t, and hope to represent your interest. Respectfully,
 BIRMINGHAM COMMISSION CO.,"
 "A demurrer was filed to the indictment on the ground that there was no suffi- cient averment of scheme to defraud. The demurrer was overruled, but we do not deem it necessary to consider the assignment of error based on that ruling. Conceding that the scheme is sufficiently charged, there must be proof of it before the plaintiff in error could be rightfully convicted The evidence shows without conflict that Faulkner was in fact en- gagged in business as advertised by him
  was uncontradicted evidence that he had made arrangements to secure and had se- cured cold storage place for perish- able foods There was conflict in the evidence as to the size of the place, but that seems to us immaterial The fact is, he was simply advertising his business, and if the advertisement contained some congregations, that does not constitute a scheme to defraud. It was shown that he failed to settle with some few of his patrons. and he offered to prove that he settled with large numbers of those who placed products in his hands for sale. The fact that one who advertises bus mess fails to make settlements with some of his creditors, the advertisements be- ing substantially true, does not sufficient ly tend to show scheme or artifice to defraud to make it a question to be sub mitted to the jury. If tie plaintiff in error is guilty of embezzlement he may be prosecuted for that offense under the laws of the state.
 After close e~r-~ nation of all the evid, be entirely use- less opinion, We have reac that there was no eta 'efore the jury to