Wechsler v. United States

• Decision Date: 07 November 1907
• Docket Number: 53.
• Citation: 158 F. 579
• Parties: WECHSLER v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

158 F. 579

WECHSLER v. UNITED STATES.

No. 53.

United States Court of Appeals, Second Circuit.

November 7, 1907

This cause comes here upon writ of error to review a judgment of the Circuit Court, Southern District of New York. The plaintiff in error, a bankrupt, was indicted for the commission of willful and corrupt perjury before a special commissioner in bankruptcy while giving testimony upon oath as to certain of his transactions. He was convicted on two counts, and sentenced to two years' imprisonment and to pay a fine of $1. Two assignments of error only were argued before this court, and these only will be considered. They are as follows: (1) The court erred in admitting in evidence the testimony of the defendant upon his examination in the bankruptcy proceeding herein. (2) The court erred in not dismissing the indictment on the ground that the crime charged in the indictment did not come within section 5392 of the United States Revised Statutes (U.S. Comp. St. 1901, p 3653), but within section 29 of the bankruptcy act (Act July 1, 1898, c. 541, 30 Stat. 554 (U.S. Comp. St. 1901, p 3433)).

A. J Dittenhoefer and Gerber & James (Dudley F. Phelps, Jr., of counsel), for plaintiff in error.

Henry L. Stimson, U.S. Atty., and E. J. Myers, Asst. U.S. Atty.

Before LACOMBE, COXE, and WARD, Circuit Judges.

LACOMBE Circuit Judge (after stating the facts as above).

The bankruptcy act of July 1, 1898 (30 Stat. 548, c. 541, Sec. 7 (U.S. Comp.

St. 1901, p. 3424)), requires the bankrupt to submit to an examination under oath as to various matters specified therein, with the proviso that 'no testimony given by him shall be offered in evidence against him in any criminal proceeding. ' It is contended that the immunity thus accorded in broad, unqualified language should apply to prosecution for falsely testifying upon any such examination; and it is suggested that the section quoted from does not contain the qualification found in section 860, Rev. St. U.S. (U.S. Comp. St. 1901, p. 661) (and in other federal statutes), that the immunity provision 'shall not exempt any * * * witness from prosecution and punishment for perjury committed 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, and 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 and fully sustain his contention. He also cites dicta in Re Marx (D.C.) 102 F. 676, and in Re Logan (D.C.) 102 F. 876, in Re Leslie (D.C.) 119 F. 406, in Re Dow's Estate (D.C.) 105 F. 889, and in Re Gaylord, 112 F. 668, 50 C.C.A. 415. On the other hand, the provision quoted was held not to give immunity from prosecution for giving false testimony upon an examination under the bankrupt act in a well-considered opinion concurred in by a majority of the court in Edelstein v. U.S., 149 F. 636, 79 C.C.A. 328, 9 L.R.A.(N.S.) 236 (C.C.A. Eighth Circuit); and an application for certiorari in that cause was refused by the Supreme Court (205 U.S. 543, 27 Sup.Ct. 791, 51 L.Ed. 922). Whatever might be our conclusions were the question presented as a novel one, we are clearly of the opinion that we should follow the construction adopted in the Eighth Circuit and left undisturbed by the Supreme Court, so that in a matter of so much importance the decisions of the federal courts in the different circuits may be uniform.

It is manifest from its inspection that the pleader who drew the indictment in this case framed it on the provisions of section 5392, Rev. St. U.S. (U.S. Comp. St. 1901, p. 3653), which he referred to in the margin, and which reads as follows:

'sec. 5392. Every person who, having taken an oath before a competent tribunal, officer or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, wilfully and contrary to such oath states or subscribes any material matter which he does not believe to be true, is guilty of perjury, and shall be punished by a fine of not more than two thousand dollars, and by imprisonment, at hard labor, not more than five years; and shall, moreover, thereafter, be incapable of giving testimony in any court of the United States until such time as the judgment against him is reversed.'

The bankruptcy act of 1898 (section 29) provides that:

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

It is manifest that what the bankrupt did, assuming the facts to be as the jury found them, was equally within the provisions of either of these sections. He made a false oath in a proceeding in bankruptcy. Having taken an oath before a competent person in a case in which a law of the United States authorizes an oath to be administered that he would testify truly, he stated material matter which he did not believe to be true. When a person states matter which he does not believe to be true 'wilfully and contrary to his oath, ' he may certainly be said to make a false oath 'knowingly and fraudulently.' We have then an offense covered by two penal sections; the earlier one imposing the heavier sentence. How shall they be construed? The earlier statute is most comprehensive. It covers oral and written false statements when sworn to before any competent, tribunal, officer, or person in any case in which a law of the United States authorizes an oath to be administered. The later statute covers such statements only when made in, or in relation to, any proceeding in bankruptcy. The principle of construction to be applied, unless there are some special considerations which prevent such application, is too well settled to require the citation of authorities. The later special statute operates to restrict the effect of the general act from which it differs. The two sections may be construed together as providing a stated penalty for the crime of false swearing generally, with the proviso that, when such false swearing occurs in a bankruptcy proceeding, the offender, upon conviction, shall be subjected to a different penalty.

Counsel for the government, however, contends that this rule of construction does not apply, because section 29 of the bankruptcy act creates a new statutory offense, not covered by section 5392 of United States Revised Statutes. The proposition advanced is that:

'A false oath made or taken before a commissioner of deeds, a justice of the peace, or a master in chancery would be capable of being used in a bankruptcy proceeding, * * * but would alone be insufficient to constitute the crime of perjury.'

The argument is that the making of such a false oath would not be 'within either the common-law or statutory definition of perjury. ' The making of a false affidavit is not perjury at common law when not made in a judicial proceeding or court of justice. The authorities relied upon by defendant in error are almost entirely concerned with perjury at common law. 2 Whart.Crim.Law, §§ 1244, 1267; Bishop on Crim. Law, Secs. 1014, 1026, 1027; Hood v. State, 44 Ala. 81; Pegram v. Styron, 1 Bailey (S.C.) 595. A single authority only deals with perjury under the statute of the United States. U.S. v. Bailey, 9 Pet. 238, 9 L.Ed. 113. In that case Bailey was indicted for perjury and false swearing under section 3 of the act of March 1, 1823 (3 Stat. 771, c. 37), and section 13 of the act of March 3, 1825 (4 Stat. 118, c. 65). The first of these sections provided:

'That if any person shall swear or affirm falsely, touching the expenditure of public money, or in support of any claim against the United States, he or she shall, upon conviction thereof, suffer as for wilful and corrupt perjury.'

The other section provided:

'That if any person in any case, matter, hearing...