38 F. Supp. 221 | D.N.J. | 1941
Henry H. Eskay appeared before the Referee in the Matter of Winton Shirt Corporation, bankrupt.
The first inquiry is whether the contempt, if any, is civil or criminal. Edward E. Bessette v. W. B. Conkey Co.,
However, this alleged contempt can be isolated and identified by remembering the reason why Henry H. Eskay became an employee of Winton Shirt Corporation. He was so placed by Philip Windsberg to secure a certain creditor or certain creditors. The fact that he initialed the checks issued, after he associated himself with the corporation, excludes every reasonable hypothesis but that of a systematic attempt to control the corporation and its disbursements. Even though eventual rehabilitation of said corporation may have been one of the purposes, the first and primary was protection. After the appointment of the trustee, Henry H. Eskay apparently deemed it inadvisable to make a complete disclosure. His conduct in this light can be understood. It was undoubtedly conceived and adhered to in order to obstruct the court in the performance of its duty. In other words, Henry H. Eskay, when faced with the problem of remaining loyal to his sponsors or making disclosures, violated the accepted standards of right conduct which carried the project forward within dangerous proximity to' the criminal end to be attained. •
The hearings were held to enable the trustee in bankruptcy to discover the whereabouts of the bankrupt’s property, to establish claims against and the liabilities of certain persons. Henry H. Eskay, by reason of his position in the corporation and his experience in general, knew or should have known many things of material value. His reliance upon a defective memory and his manifest deliberate determination to conceal
The proceedings are on the Referee’s certificate not on a petition by the trustee. The papers are entitled as above, and they put the alleged contemner on notice that he is on the one side with the court on the other. The Statute provides for prosecution by the Judge sua sponte, and it does not necessarily follow he must call upon the District Attorney, when, as here, it seems advisable to have some person familiar with the matter present same. Gompers v. Buck’s Stove & Range Co., supra, does not make crucial any one detail, but rather sums up the features which distinguish civil from criminal contempt.
It is believed that the Third Circuit is not a proponent of the rule that prosecution by the District Attorney is sine qua non to a criminal contempt
It has been argued that before a person can be committed for contempt for refusing to be examined, he should be first admonished and given an opportunity to purge himself, after which a specific question should be asked and a specific answer required;
In a matter such as this the summary hearing
Generally, findings of fact in contempt proceedings are not to be lightly disturbed.
The Court recognizes that it is impossible to have a duly constituted court if the judicial officer is absent.
Henry H. Eskay is directed to appear before this Court on Tuesday, April 15th, 1941, at 10 o’clock in the forenoon, at which time sentence will be imposed.
Hearings on May 6, 10, 16, and 24, 1938.
11 U.S.C.A. §.69, sub. a(4).
Dated June 9, 1938, filed June 9, 1938.
Order dated June 17, 1938, filed June 17,1938.
194 U.S. 324, 329, 24 S.Ct. 665, 667, 48 L.Ed. 997. See, also, Gompers v. Buck’s Stove Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797, 34 L.R.A., N.S., 874.
In the opinion of the Court, this finding is supported beyond a reasonable doubt by the relevant evidence which includes the testimony of Henry H. Eskay at the Hearings on May 6, 10, 16 and 24, 1938.
In re Gitkin, D.C.E.D.Pa., 164 F. 71; In re Magen et al., D.C.E.D.Pa., 179 F. 572, reversed, 3 Cir., 186 F. 675; Davidson v. Wilson et al., 3 Cir., 286 F. 108; In re Davoli, D.C.W.D.Pa., 28 F.2d 87; In re Schulman et al., 2 Cir., 177 F. 191; In re Rosenblum, D.C.W.D.Mo., 268 F. 381; In re Shear, D.C.W.D.N.Y., 188 F. 677; In re Kaplan Bros., 3 Cir., 213 F. 753, certiorari denied 234 U.S. 765, 34 S. Ct. 998, 58 L.Ed. 1582. See, also, Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656, 11 A.L.R. 333.
Ex parte Hudgings, supra.
Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993.
In re Star Spring Bed Co., 3 Cir., 203 F. 640; In re Kaplan Bros., supra.
In re Kahn, 2 Cir., 204 F. 581.
In re Guzzardi, 2 Cir., 74 F.2d 671.
In re Blitz, D.C.E.D.Pa., 232 F. 276. This ease was decided in 1916. It does not give authorities in support of the proposition taken therefrom, and Shepard’s Federal Reporter Citations down to and including February, 1941, indicate it has never been cited,
The summary hearing is required by 11 U.S.C.A. § 69.
In re Kaplan Bros., supra.
in re Gompers v. Buck’s Stove & Range Co., supra.
Davidson v. Wilson, 3 Cir., 286 F. 108.
Gompers v. Buck’s Stove & Range Co., supra; In re McIntosh, 9 Cir., 73 F.2d 908.
Stevens v. Young, 180 Ky. 154, 202 S.W. 481. See, also, Arnold and James, Cases on Trials, Judgments and Appeals; 23 Corpus Juris Secundum, Criminal Law § 972 and § 1434; 12 Harvard Law Review, page 433; People v. Bolton, 324 Ill. 322, 155 N.E. 310.
Page 51, Hearing May 10, 1938.
See: Holbrook v. Commonwealth, 249 Ky. 795, 61 S.W.2d 644; People v. Rudorf, 149 Ill.App. 215; Sheppard v. State, 167 Ga. 326, 145 S.E. 654; Bryant v. Commonwealth, 231 Ky. 152, 21 S. W.2d 231; 24 Corpus Juris Secundum, Criminal Law § 1673.
The question of waiver was referred to but not decided in Kampf v. State, N.J.Ch., 30 A. 318. See, also, O’Keefe v. Moore, 60 N.J.L. 138, 37 A. 453.