United States v. Simon

Decision Date01 June 1906
Docket Number3,253.
Citation146 F. 89
PartiesUNITED STATES v. SIMON.
CourtU.S. Court of Appeals — Ninth Circuit

Jesse A. Frye, U.S. Atty.

Richard Saxe Jones and William H. Brinker, for defendant.

Gray &amp Stern, amicus curiae.

HANFORD District Judge.

By the indictment the defendant is accused of the crime of perjury committed by giving false testimony under oath in support of claims against his estate (he being a bankrupt) before a referee in the investigation of the claims referred to. The defendant on being arraigned demurred to the indictment specifying three grounds, the first of which is that the charge of perjury cannot be predicated upon false testimony in bankruptcy proceedings, under the act of July 1, 1898, c 541, (U.S. Comp. St. 1901, p. 3418), for the reason that there is no law of the United States authorizing a witness or the bankrupt to be sworn in a court of bankruptcy to give testimony in proof of a creditor's claim, and without such a law false testimony under oath does not constitute a crime against the United States.

1. I do not agree with the defendant's counsel in their contention that the bankruptcy law has failed to confer power upon the courts to examine witnesses under oath in order to ascertain the facts upon which the validity of claims of creditors must be determined.

The second section of the act enumerates certain powers conferred upon the bankruptcy courts, including power to-- 'Allow claims, disallow claims, re-consider allowed or disallowed claims, and allow or disallow them against bankrupt estates; * * * cause the estates of bankrupts to be collected, reduced to money and distributed, and determine controversies in relation thereto except as herein otherwise provided: * * * enforce obedience by bankrupts, officers, and other persons to all lawful orders, by fine or imprisonment or fine and imprisonment.' The seventh section provides that the bankrupt shall-- 'When present at the first meeting of his creditors, and at such other times as the court shall order, submit to an examination concerning the conducting of his business, the cause of ,is bankruptcy, his dealings with his creditors and other persons, the amount, kind, and whereabouts of his property, and, in addition, all matters affecting the administration and settlement of his estate; but no testimony given by him shall be offered in evidence against him in any criminal proceeding.'

The twentieth section provides that:

'Oaths required by this act, except upon hearings in court, may be administered by referees; * * * any person conscientiously opposed to taking an oath may, in lieu thereof, affirm. Any person who shall affirm falsely shall be punished as for the making of a false oath.'

The twenty-first section provides that:

'A court of bankruptcy may, upon application of any officer, bankrupt, or creditor, by order require any designated person, including the bankrupt, who is a competent witness under the laws of the state in which the proceedings are pending, to appear in court or before a referee or the judge of any state court, to be examined concerning the acts, conduct or property of a bankrupt whose estate is in process of administration under this act.'

The twenty-second section authorizes courts of bankruptcy-- 'To refer bankruptcy proceedings generally to referees or specially with only limited authority to act in the premises or to consider and report upon specified issues.'

The twenty-ninth section provides that:

'A person shall be punished, by imprisonment for a period not to exceed two years upon conviction of the offense of having knowingly * * * made a false oath or account in, or in relation to, any proceeding in bankruptcy.'

Section 38 provides that:

'Referees respectively are invested with jurisdiction * * * to exercise the powers vested in courts of bankruptcy for the administering of oaths to and the examination of persons as witnesses and for requiring the production of documents in proceedings before them; except the power of commitment.'

Section 57 provides that:

'Proof of claims shall consist of a statement under oath, in writing, signed by a creditor, setting forth the claim, the consideration therefor, and whether any, if so, what payments have been made thereon, and that the sum claimed is justly owing from the bankrupt to the creditor. * * * Claims which have been allowed may be re-considered for cause and re-allowed or rejected in whole or in part, according to the equities of the case, before but not after the estate has been closed.'

By the foregoing provisions of the bankruptcy law, it appears to be plain that bankruptcy proceedings are to be conducted judicially, and according to the general course of procedure in courts, and there is no doubt in mind that this law does expressly authorize an oath to be administered by a referee in bankruptcy to a witness appearing voluntarily or under compulsory process to give testimony in support of claims presented by alleged creditors, and I hold that the indictment is not obnoxious to a demurrer upon the first of the grounds assigned.

2. The second objection to the indictment is upon the ground that perjury cannot be assigned upon the alleged false testimony given by the defendant before the referee, for the reason that said testimony was not material or relevant to any issue then being tried. This objection appears to me to be without merit, and no argument has been made in support of the same, save the bare assertion of counsel that the testimony 'could not be material.'

3. The third ground upon which the demurrer attacks the indictment is that the law grants complete immunity to a bankrupt from prosecution for the crime of perjury committed in giving testimony in any proceeding relating to the administration of his bankrupt estate. This contention is based upon the general and comprehensive provision contained in the ninth subdivision of section 7 of the bankruptcy act, above quoted. The statute is mandatory and absolute; that is to say without any qualifying phrase or exception, it declares that no testimony given by a bankrupt shall be offered in evidence against him in any criminal proceeding. Of course, this provision of the statute must not be enlarged by a literal reading, so as to prohibit the use of a bankruptS testimony given in any case; the only limitations, however, consistent with the words, will merely restrict the application of this clause to testimony given by a...

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5 cases
  • Edelstein v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • November 30, 1906
    ... ... the light of reason or authority, to sustain defendant's ... contention that it affords immunity to him for the crime with ... which he is charged in this case. The authorities to which ... his counsel invited attention ( United States v. Simon ... (D.C.) 146 F. 89, among others) have been carefully ... considered, but are not sufficiently persuasive to overcome ... our settled conviction. Finding no error in the proceedings ... below, the judgment is affirmed ... [149 F. 645] ... PHILIPS, ... District Judge ... ...
  • In re Bluestone
    • United States
    • United States Bankruptcy Courts. Sixth Circuit. U.S. Bankruptcy Court — Northern District of Ohio
    • June 13, 1989
    ...person who takes the notes of the bankrupt's examination testifies that they were truly and correctly taken); see, also, U.S. v. Simon, 146 F. 89 (D.C.Wash. 1906). During the trial the Debtor testified that he has never had any interest in Galvco stock (Debtor, Direct Ex.). Yet in previous ......
  • Wechsler v. United States
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 7, 1907
    ...in * * * testifying as aforesaid. ' Plaintiff in error cites in support of his contention the opinion of Judge Hanford in U.S. v. Simon (D.C.) 146 F. 89, the dissenting opinion of Judge Phillips in Edelstein v. U.S., 149 F. 636, 79 C.C.A. 328, 9 L.R.A.(N.S.) 236, which are directly in point......
  • Columbia Finance & Trust Co. v. Purcell
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • June 6, 1906
    ...146 F. 85 COLUMBIA FINANCE & TRUST CO. v. PURCELL et al. No. 61.United States Circuit Court, E.D. Pennsylvania.June 6, 1906 ... Charles ... L. McKeehan and ... ...
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