United States v. Penn

13 Nat. Bank. Reg. 464 | U.S. Circuit Court for the District of Southern Ohio | 1876

SWING, District Judge.

The offense created by the ninth clause of this section, and which is charged íd the first, third, and fourth counts of the indictment, is composed of the following elements: First. That proceedings in bankruptcy were commenced against the defendant. Second. That he obtained on credit from the parties named in the indictment the goods therein described. Third. That he obtained them within three months before the commencement of the proceedings in bankruptcy. Fourth. That he obtained them under the color and pretense of carrying on bnsiness, and dealing in the ordinary course of trade. Fifth. That such color and pretense were false. Sixth. That he obtained them with intent to defraud. Each one of which must be established by the evidence in the case before the jury will be justified in returning a verdict of guilty. There is no material controversy in regard to the existence of the first three facts, to wit: The commencement of the proceedings in bankruptcy; the obtaining on credit from the parties the goods; and that it was within three months before the proceedings in bankruptcy. But the last three are the principal facts con tested.

If you find from the evidence that proceedings in bankruptcy were properly commenced against the defendant, that he obtained on credit from the parties the goods described, and that it was within three months before the commencement of the proceedings in bankruptcy, you will then inquire whether he obtained them under the color and pretense of carrying on business as a merchant at Bainbridge, and dealing in the ordinary course of trade? In order to establish this fact, it must be shown by the evidence that the defendant pretended to the parties that he was carrying on business as a merchant at Bainbridge, and dealing in the ordinary course of trade. This pretense may, however, have been by conduct as well as by words. 2 Whart. Cr. Law, 2097, 2113; 2 Rup. Crimes, 292, 297; Reg. v. Boyd, 5 Cox, Cr. Cas. 502; U. S. v. Prescott [Case No. 16,084). But the evidence must nevertheless establish its existence. And the evidence must further show that parties in consequence of this pretense were induced to part with their goods. And that this pretense was false, that is, that he was not in fact carrying on business as a merchant at Bainbridge, and dealing in the ordinary course of trade. It will be remarked that the statute is not against obtaining goods under all false colors and pretenses, but against the single one, that of carrying on business and dealing in the ordinary course of trade. Reg. v. Boyd, 5 Cox, Cr. Cas. 502; U. S. v. Prescott [supra].

If you find from the evidence that he made the pretense—that he was carrying on business as a merchant at Bainbridge, dealing in the ordinary course of trade—that the parties in consequence of this representation and pretense parted with their goods, and that in fact he was not carrying on business as a merchant at Bainbridge. dealing in the ordinary course of trade, then you will inquire whether the defendant obtained such goods with intent to defraud. This is an important element in the offense, and its existence must be established by the evidence in the case. This, however, may be established by facts and circumstances. If, therefore, you find that the proceedings in bankruptcy were commenced against the defendant, that he obtained upon credit from the parties the goods described in the indictment—within three months before the commencement of said proceedings, that he represented to them that he was carrying on business as a merchant at Bainbridge, and dealing in the ordinary course of trade—and that the parties, by reason of such representation, parted with the goods, and that he was not in fact carrying on btisiness as a merchant at Bainbridge, and dealing in the ordinary course of trade— and that he obtained the goods with the intent to defraud, the defendant would be guilty under the first count of the indictment, if the goods were obtained from Meyers, Thie-man & Co., and under the third and fourth counts if the goods were obtained from Shillito & Co.

The offense created by the tenth clause of this section, and which is charged in the second count in the indictment, is composed of the following elements: First. That proceedings in bankruptcy were commenced against the defendant. Second. That he sold the goods therein described. Third. That he sold them within three months next before the commencement of the proceedings in bankruptcy. Fourth. That the goods were obtained on credit, and unpaid for. Fifth. That the sale was not made in good faith, in the ordinary way of trade. Sixth. That the sale was made with the intent to defraud his creditors.

The first three elements constituting the offense under this clause, are the same as the first three elements constituting the offense under the ninth clause of the section, except in that, the goods were obtained and in this they were sold and it may be said of these as well as of the fourth element necessary to constitute the offense under this clause, that their existence is not seriously controverted. If you, therefore, find from the evidence in the case that proceedings in bankruptcy were commenced against the defendant; that he sold the goods described; that he sold them within three months next before the commencement of the proceedings in bankruptcy, and that the goods were obtained on credit and unpaid for, you will then inquire whether the sale was made in bad faith and out of the ordinary way of his trade? This also may be established by facts and circumstances. If you find that the sale was made in bad faith, and out of the ordinary way of his trade, you will then inquire whether the sale was made with intent to defraud his creditors. This, too, may be established by circumstances, but it must be shown to the satisfaction of the jury by them that the intent existed in the mind of the defendant at the time the sale was made. A question is made whether this intent must exist against the particular creditor from whom the goods were purchased or against his creditors in general? I think it clear that it must have existed against his creditors in general, and not against the particular creditor from whom the goods were purchased. U. S. v. Clark [Case No. ^,80(5). If, therefore, you find from the evidence, that proceedings in bankruptcy were commenced against the defendant, that he sold the goods described, that the sale was within three mouths next before the commencement of the proceedings in bankruptcy, that the goods were obtained on credit and unpaid for, that the sale was made in bad faith out of the ordinary course of his trade, and that the sale was made with the intent to defraud his creditors, the defendant would be guilty under the second count in the indictment.

The legal p-esumption is that the defendant is innocent of the crime charged, and so strong is this presumption that it can only be overcome by evidence which establishes his guilt beyond a reasonable doubt; in civil cases the preponderance of evidence will justify a verdict but it is not so in criminal cases, for no preponderance of evidence which falls short of removing from the minds of the jury every reasonable doubt of the guilt of the accused, will justify a verdict of guilty. In a criminal case, it is competent for the accused to put in evidence his former good character in relation to the particular crime with which he stands charged. Thus, in the present case, the character of the defendant for integrity and honesty as a merchant, is evidence to be considered by the jury upon the question of his guilt, for the reason “that it may not be probable that a man who has sustained a uniform good character for integrity and honesty will forfeit it by the commission of a fraudulent and dishonest act.” If, therefore, the evidence satisfies your minds beyond a reasonable doubt of the guilt of the defendant, your verdict will be guilty, but if it does not so satisfy your minds it will be. not guilty.

Verdict of not guilty.