220 F. 822 | 5th Cir. | 1915
Lead Opinion
The defendant “then and there knowingly, willfully, and fraudulently, and while he was a bankrupt as aforesaid, concealed the aforesaid sum of money*824 from Ms said receiver, which said sum of money belonged then and there to the bankruptcy estate of the said Morris M. Meyer.”
In this connection it is pointed'out that the statute (section 29, subd. “b” of the Bankruptcy Act) upon which the prosecution must rest does not make it a criminal offense for a bankrupt knowingly and fraudulently to conceal, while a bankrupt or after his discharge, from his receiver, property belonging to his estate in bankruptcy, and that that statute is directed against such a concealment from the bankrupt’s trustee only. The count does not fail to charge such a concealment from the trustee. It commences and concludes with averments to this effect which substantially follow the language of the statute -which created the offense. Following the first-mentioned of these averments is a narrative as to how the defendant acquired the money alleged to have been concealed, namely, by getting cashed a described check payable to himself, of the appointment of a receiver of the bankrupt estate, and of the defendant’s concealment from such receiver pf the money so obtained, the averment of such concealment being the one above quoted. Following this narrative, the count proceeds to allege the selection, appointment, and qualification of a trustee of the bankrupt estate, and concludes with the averment:
“That after tbe selection, appointment, and qualification of the said Vincent B. McAleer as said trustee, tbe said Morris M-. Meyer did then and there continue to conceal, knowingly, fraudulently, willfully, and unlawfully, from Ms said trustee, the aforesaid money then and there belonging to his said estate in bankruptcy, and while he, the said Morris M. Meyer, was then and there such bankrupt.”
While the count shows that the concealment charged had its commencement while the receivership was in existence, we think that its opening and concluding averments make it sufficiently plain that it was the continuance of that concealment after the appointment and qualification of the trustee, and not what is alleged to have occurred before such appointment and qualification, which is made the basis of the criminal charge preferred, and that the allegation as to a concealment from the receiver could not well have been understood as a charge of a separate offense, or as descriptive of an essential ingredient of the conduct which was relied on to support a conviction. There is nothing in the record to indicate that it was so understood and treated in the trial court. As the count pointedly averred every fact necessary to be proved to constitute the offense denounced by the statute, its sufficiency was not impaired by the unnecessary averment as to a concealment from the receiver. Hall v. United States, 168 U. S. 632, 18 Sup. Ct. 237, 42 L. Ed. 607; In re Lane, 135 U. S. 443, 10 Sup. Ct. 760, 34 L. Ed. 219. In this connection the counsel for the plaintiff in error refer us to the decision in the case of Ex parte Bain, 121 U. S. 1, 7 Sup. Ct. 781, 30 L. Ed. 849. That decision does not support the proposition that a superfluous allegation in an indictment renders it subject to demurrer. What was dealt with in that case was an unauthorized action' of a court in striking out part of an indictment.
“You spoke about a suit — about an auto and ring. This is the suit you dismissed for want of evidence, isn’t it?”
The defendant duly excepted to the action of the court in sustaining the prosecution’s objection to this question. It is quite apparent that, in its connection with other evidence of incriminating conduct on the part of the defendant, the above-quoted statement of the witness may well have bqen understood as a suggestion or insinuation, and not a very covert one, that an automobile and a diamond ring also figured among the things which were improperly withheld or concealed from the defendant’s creditors or their representative in the bankruptcy proceeding. It readily may be supposed that any unfavorable impression that may have been made upon the jury by evidence of the defendant’s concealment of sums of money may have been deepened, and that the probative effect of any explanation advanced by the defendant of other transactions of his which were deposed to by witnesses for the prosecution may, in the estimation of the jury, have been materially impaired by what they regarded as proof of a circumstance from which it was to be inferred that the defendant was responsible for the amount of the assets of his estate in bankruptcy being reduced by the withholding or concealment of such articles of luxury as an automobile and a diamond ring. On the cross-examination of the witness the defendant was entitled to prove by him his inability to adduce any evidence to support the suit of which he had made mention, and the dismissal of it for that reason, and in this way to show to
It is suggested that the proper remedy available to the defendant was a motion to strike out that part of the testimony of the witness which contained the mention of the suit for an automobile and a diamond ring. The defendant is not to be confined to that remedy. We cannot shut our eyes to the fact that a court’s withdrawal of evidence from the consideration of jurors frequently is much less effective in removing from their minds an impression made by it than explanatory or rebutting evidence going to prove that the circumstance which the excluded evidence tended to prove was one incapable of supporting an inference unfavorable to the party against whom that evidence was introduced. The conclusion is that the court was in error in the ruling-last above mentioned.
“Didn’t yon sport in a $3,000 auto? You sported in an auto two or three days before the adjudication. Didn’t you fly around Mobile just a few days after you were adjudicated a bankrupt?”
The evidence called for by this question could not properly have been admitted over the objection made, except in connection with other evidence already introduced, or which was proposed to be offered, having a tendency to prove that the defendant had had some property interest in the automobile inquired about. The fact of his riding in somebody else’s automobile could have shed no light on any question involved in the case on trial. But in the circumstances of the transaction which was under investigation it readily can be realized how evidence of that fact may have unduly impressed the jury and created a prejudice against the defendant. There was no suggestion that there was anything other than the bringing of the suit mentioned by the witness McAleer to suggest or indicate that the defendant or his estate in bankruptcy had ever had any interest in that automobile. The prosecution controverted the defendant’s version of the circumstances attending his failure in business, and introduced evidence which, if believed, was well calculated to discredit any testimony he might give. In this situation the party seeking to. discredit the defendant’s testimony cannot with much plausibility of consistency claim that his uncorroborated explanation of an apparently unfavorable incident which had been deposed to must have been accepted by the jury as satisfactorily rebutting, or destroying the effect of the evidence of that incident. The conclusion is that the rulings under con*
In another trial the court may readily avoid any ground for such an objection as the one raised to the judgment now under review, based upon the finding of the jury having been returned, not to the court, but to the clerk of the court during a recess, and in the absence of the defendant.
The judgment is reversed, and the cause is remanded.
Dissenting Opinion
(dissenting). , I am of the opinion that there is no reversible error in the record, and that the judgment should be affirmed.