263 F. 257 | 3rd Cir. | 1920
Against the estate of the Saunders Shoe Company, in bankruptcy, one Levinson had presented a claim for some $18,000, which he alleged was loaned to said company. On the other hand, the government alleged that the money in question represented a purchase by Levinson of the shoe company’s stock, and that the said money had never been loaned to the company, and indicted Levinson for violating Bankruptcy Law, § 29 (Comp. St. § 9613), which provides:
“A person, shall be punished, by imprisonment for a period not to exceed two years, upon conviction of the offense of having knowingly and fraudulently * * * presented under oath any false claim for proof against the estate of a, bankrupt.”
On the trial he was found guilty, and, on the court below having entered judgment on the verdict and imposed sentence, Levinson appealed to this court. *
We have carefully examined the several assignments of error, and have found no error. Of these assignments, the first, second, and third concern rulings on the admissions of testimony. Without entering into a recital of them, we confine ourselves to saying we find no error ift their admission.
As to whether the government could, in the light of the situation of this case, have given such evidence in chief, we have not that question before us, and therefore express no opinion. The testimony here complained of was given on redirect examination, and was in reality an explanation of testimony elicited by defendant’s counsel on cross-examination. This matter having been brought into the case by the defendant on cross-examination, we think the subsequent admission, on redirect examination, of a further explanation of what the defendant had himself introduced into the case, was well within the discretion of the trial judge.
In the first place, the statute provides:
“A person shall be punished by imprisonment, for a period not to exceed two years, upon conviction of the offense of having knowingly and fraudulently * * * presented under oath any false claim or proofs against the estate of a, bankrupt.” Oomp. St. § 0613.
Applying that statute to the present case, the issue was: Did the defendant present a claim for money loaned to the bankrupt, which he knew was false and fraudulent? Had he loaned his money to the company? If he had not, a claim presented for loaned money was false and fraudulent, and the presentation of such unfounded false claim was, by the statute, made a crime. Whether the defendant loaned the company money was a fact, and the defendant, and he alone, knew whether he had in fact loaned the money to the company. He says he loaned it, but the jury has found he did not, and consequently that, when he testified he had loaned his money to the company, he was not telling the truth. When, therefore, the defendant went to counsel, and told counsel, as he no doubt did, that he had loaned his money to the company, lie had not, as the point quoted below assumes, “fully and in good faith laid the facts in regard to his claim against the Saunders Shoe Company before his counsel.” This phase of the case the court below called to the attention of the jury in these words:
“Was he acquainted and familiar with the state of the bankrupt’s accounts, and did he know his own relations to the company as debtor or creditor, whatever his relations may have been in that respect? If ho did, and lie knew how he stood, what his relations were, whether debtor or creditor, and what the state of Ms accounts with the corporation was, he should be held accountable and responsible for Ms statement presented, although ho sought and obtained advice of counsel, as was testified; in other words, if he se-‘ cured the advice of counsel simply as a subterfuge, or for excuse for presenting a claim which ho knew or believed to be unfounded, he would not be excused. However, if, on the other hand, he was honestly in doubt as to the justice of his claim, believing in good faith he might have such claim, based upon tho true circumstances of Ms business relations with the corporation, and he sought the advice of counsel, disclosing honestly and fully*260 the real and true facts concerning his claim to his lawyer, and who, after consulting with him, advised the defendant to the effect that his claim was just and legal, and thereupon his counsel, in accordance with the information he had just received from his client, Levinson, prepared the same, as you have it before,you in this bill of indictment, it could not be said that the defendant knowingly presented, under oath, a false claim, and he should not be convicted.”
It will thus be seen that the court was not in error in refusing the point of the defendant printed in the margin,
In substance, the errors alleged in the tenth, eleventh, and twelfth assignments, are the court erred in refusing to give binding instructions for tire defendant. In view of the proofs, we fail to see how the court could have properly refused to submit the case to the jury. Seeing that it has thus determined the basic question of fraud against the defendant, we see'no reason, under the proofs, why their verdict should not be followed by judgment and the sentence imposed.
“The undisputed testimony being that the defendant had fully and in good faith laid the facts in regard to his claim against the Saunders Shoe Corporation before his counsel, and that upon them he was advised, as a matter of law, that the written claim which he swore to and filed against the corporation was a valid claim, and that all of the statements contained therein were the truth and could be properly sworn to, and that he, acting on this advice, did swear to the said claim, believing that he had been correctly advised, he is not guilty of any of the offenses charged in the indictment, and the jury are directed to acquit him.”