McNiel v. United States
150 F. 82
5th Cir.
1907
Check Treatment
PARDEE, Circuit Judge

(after stating the facts). Only two assignments of error seem to be relied upon in this court:

1. That the court erred in rejecting the evidence of Attorney Smith as recited in the statement of the case. If it be conceded that, in a class of offenses similar to the one in hand, criminal intent may be negatived by showing that the accused, after full statement of facts to counsel, in committing or doing the act in .question acted under the advice of counsel (as to which see Barnett v. State, 89 Ala. 170, 7 South. 414; United States v. Conner, 3 McLean, 573, Fed. Cas. No. 14,847; United States v. Stanley, 6 McLean, 409, Fed. Cas. No. 16,376), it cannot avail the plaintiff in error, because, from what was offered to be proved on the trial, to wit, that Attorney Smith advised *84the plaintiff in error in substance that he should keep his business open up to the usual closing time, and then turn said business over to the proper official designated by the referee, there can be no legitimate inference or deduction that Attorney Smith advised his client that the money which he would receive for selling goods in the interim did not belong to the bankrupt estate and that he need not turn it over to the, proper official. If the plaintiff in error had been on trial on a charge of having unlawfully sold or transferred property belonging to his estate after he was adjudicated a bankrupt, the evidence offered might have been material. It is entirely consistent with Attorney Smith’s instructions, as offered to be proved, that the proceeds of the goods sold, resulting from carrying on the business after the adjudication, were to be turned over to the proper official and not to be retained by the bankrupt. The rejection of Attorney Smith’s evidence as offered was not erroneous.

2. The gist of the other assignment of error insisted upon-is that, although the offense is charged in the language of the statute, reinforced by “unlawfully” and “willfully,” yet the indictment is insufficient, because it does not specifically charge that the plaintiff in error knew that the assets which he concealed belonged to his estate in bankruptcy. To support this contention counsel rely on United States v. Carll, 105 U. S. 611, 26 L. Ed. 1135, to the effect that in an indictment upon the statute it is not sufficient to set forth the offense in the words of the statute, ttnless those words of themselves fully, directly, and expressly, without uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished, and the fact that the statute in question, read in the light of the common law and of other statutes on the like matter, enables the court to infer the intent of the Legislature, does not dispense with the necessity of alleging in the indictment all the facts necessary to bring the case within that intent. The Carll Case has been followed by the Supreme Court in many cases. See United States v. Hess, 124 U. S. 483, 8 Sup. Ct. 571, 31 L. Ed. 516, Evans v. United States, 153 U. S. 584, 14 Sup. Ct. 934, 38 L. Ed. 830, and Keck v. United States, 172 U. S. 434, 19 Sup. Ct. 254, 43 L. Ed. 505, all to the effect that all the ingredients of the offense are to be charged in the indictment, although the statute in its general or special description has omitted some of them.

But these cases are not exactly in point here, where the question is whether all the ingredients of the offense are sufficiently charged in the indictment, and particularly whether this indictment sufficiently charges that the accused knew that the money concealed belonged to his estate in bankruptcy. In Rosen v. United States, 161 U. S. 29, 16 Sup. Ct. 434, 40 L. Ed. 606, it was held that an indictment charging Rosen with unlawfully, willfully, and knowingly depositing obscene mqtter in the mails sufficiently charged him with the knowledge that the matter deposited was obscene. In Dunbar v. United States, 156 U. S. 194, 15 Sup. Ct. 325, 39 L. Ed. 390, it was held that when the charge is made that the defendant willfully, unlawfully, and knowingly, and with intent to defraud the revenues of the United States, smuggled and clandestinely introduced into the United States prepared opium, *85it carries with it a direct averment that he knew that the duties were not fully paid. And see Keck v. United States, 172 U. S. 439, 19 Sup. Ct. 254, 43 L. Ed. 505. In Price v. United States, 165 U. S. 311, 17 Sup. Ct. 366, 41 L. Ed. 727, the court, citing and following the Rosen Case, held that in an indictment under section 3893, Rev. St. [U. S. Comp. St. 1901, p. 2658], it was sufficient to charge that the accused knowingly deposited, etc., a printed hook and pamphlet, “the character of which is so obscene, lewd, and lascivious that said book would be offensive if set forth in full in this indictment,” without any more specific allegation that the book was obscene. And the court says:

“This indictment is sufficient, because it does, in fact, contain a charge that the book was obscene, to the knowledge of the defendant, who knowingly and willfully, with such knowledge, deposited it in the mail, and thus violated the statute. No one, on reading the third and fifth counts of the indictment, could come to any other conclusion in regard to their meaning, and when this is the case an indictment is good enough.”

So we say that the charge that the accused did unlawfully, knowingly, willfully, and fraudulently conceal from his trustee, etc., certain property belonging to the estate in bankruptcy, and which said property was in his hands and possession, etc., carries with it a sufficient averment that the accused knew that the property he was charged with concealing belonged to his estate in bankruptcy, and, further, that no one on reading the third count of the indictment in this case could come to any other conclusion in regard to its meaning, and when this is the case the indictment is good enough.

The judgment of the District Court is affirmed.