158 F. 579 (2nd Cir. 1907), 53, Wechsler v. United States

Docket Nº:53.
Citation:158 F. 579
Case Date:November 07, 1907
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 579

158 F. 579 (2nd Cir. 1907)




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.

Page 580

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...

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