Frankfurt v. United States

231 F. 903 | 5th Cir. | 1916

PER CURIAM.

On a verdict finding the plaintiff in error guilty on the first and second counts of the indictment he was sentenced to imprisonment for a term of two years on each- of the counts; the judgment, however, containing the provision that “the sentences on the first and second count to run concurrently.”

[ 1 ] The second count sufficiently charged that four named persons, one of them being the plaintiff in error, conspired to commit the offense denounced by Bankr. Act July 1, 1898, c. 541, § 29b, 30 Stat. 554 (Comp. St. 1913, § 9613), against one who knowingly and fraudulently conceals while a bankrupt, or after his discharge, from his trustee, any of the property belonging to his estate in bankruptcy, and that one or more of such parties did a specified act to effect the object of the conspiracy. Criminal Code, § 3'7. That count is very similar to the indictment which was passed on in the case of Cohen v. United States, 157 Fed. 651, 85 C. C. A. 113; Id., 207 U. S. 596, 28 Sup. Ct. 261, 52 L. Ed. 357, with the exception that in the instant case the alleged bankrupt was a firm or partnership, while in the Cohen Case the bankrupt was a corporation. All objections urged against the sufficiency of that count may be disposed of by a reference to rulings made in similar cases in which those objections have been passed on and

held, and we think correctly, not to be tenable. Cohen v. United States, supra; Roukous v. United States, 195 Fed. 353, 115 C. C. A. 255; Id., 225 U. S. 710, 32 Sup. Ct. 840, 56 L. Ed. 1267; Kaufman v. United States, 212 Fed. 613, 129 C. C. A. 149; Williamson v. United States, 207 U. S. 425, 28 Sup. Ct. 163, 52 L. Ed. 278; Heike v. United States, 227 U. S. 131, 33 Sup. Ct. 226, 57 L. Ed. 450, Ann. Cas. 1914C, 128; United States v. Rabinowich, 238 U. S. 78, 35 Sup. Ct. 682, 59 L. Ed. 1211.

[2] We do not find it necessary to pass on the sufficiency of the first count of the indictment, as when a separate sentence for the same term o£ imprisonment is imposed on a verdict of guilty on each of two counts, one of which is bad, but the terms of imprisonment are to be concurrent and not cumulative, the result is practically the same as it would have been if there had been no conviction on the bad count, and the defendant has nothing to complain of in such a judgment. Bartholomew v. United States, 177 Fed. 902, 101 C. C. A. 182; Id., 217 U. S. 608, 30 Sup. Ct. 697, 54 L. Ed. 901; Billingsley v. United States, 178 Fed. 653, 101 C. C. A. 465; Powers v. United States, 223 U. S. 303, 32 Sup. Ct. 281, 56 L. Ed. 448; Dunbar v. United States, 156 U. S. 185, 15 Sup. Ct. 325, 39 L. Ed. 390. The second count being sufficient to sustain the sentence, any insufficiency there may be in the first count would not warrant a reversal of the judgment which was rendered. An examination of the record has led us to the conclusion that it does not show the commission of any reversible error.

The judgment is affirmed.