239 F. 16 (3rd Cir. 1917), 2121, Knoell v. United States
|Citation:||239 F. 16|
|Party Name:||KNOELL et al. v. UNITED STATES.|
|Case Date:||February 02, 1917|
|Court:||United States Courts of Appeals, Court of Appeals for the Third Circuit|
Rehearing Denied March 14, 1917.
[Copyrighted Material Omitted]
Wm. A. Gray and Reuben O. Moon, both of Philadelphia, Pa., for plaintiffs in error.
Francis Fisher Kane, U.S. Atty., and Robert J. Sterrett, Asst. U.S. Atty., both of Philadelphia, Pa.
Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.
McPHERSON, Circuit Judge.
John Knoell, George Knoell, and Reuben Turetz were indicted for conspiring to violate several provisions of the Bankruptcy Act. The indictment comprised five counts, but the first three were set aside on demurrer. Turetz pleaded guilty to the fourth and fifth, the others were convicted, and all of them were sentenced to imprisonment. To this judgment the Knoells alone have sued out the pending writ of error, raising several questions that call for consideration.
1. The sufficiency of the fourth count. The Knoells were wholesale dealers in furniture, and Rose Turetz was a retail dealer, her husband, Reuben, managing the business. An involuntary petition was
filed against Rose on November 23, 1914, and the count charges that, on or about November 24 the three defendants conspired with Rose and with Jacob Winderman, Hyman Rash, Harry Dubin, and Joseph Sandler knowingly and fraudulently to receive from Rose, after the filing of the petition, a material amount of property-- brass and iron beds worth about $500-- with intent to defeat the act. The count charged, further, that on the 25th the three defendants, knowing that the beds belonged to Rose's estate, agreed to receive them from her, and after such receiving concealed them on the premises of Jacob Winderman, with intent to convert them to their own use. Thus far, the averments of the count are formally correct, and they are not impaired by the description of the overt acts. These are averred to be four in number: (a) About November 25 the defendants placed the beds on Winderman's premises; (b) about the same date they induced Rash to persuade Winderman to allow the beds to be concealed temporarily. (c) on December 4 Turetz induced Winderman to swear to a petition, alleging the beds to be his, and asking the bankruptcy court (whose receiver had meanwhile taken them into possession) to order their return to him; (d) on the same day Winderman signed the petition, and this was afterwards presented to the court.
On demurrer all the averments in the count are to be taken as true, and it is not easy to see wherein they are defective. The beds may have been removed from the possession of Rose before November 23 or afterward, but in either event they continued to be her own property, or the property of her estate. It was not necessary that they should remain in her actual possession; they belonged to her or to the estate; and the conspiracy is charged to have been formed on November 24, the overt acts just set forth helping to show that in form the count is within section 29b4. The demurrer was properly overruled.
2. The conviction on the fourth count. The assignment of error is supported by an exception, and the contention is that the evidence did not sustain the count, and that such an instruction should have been given. The point of the argument is this: The evidence showed that the beds had been removed on November 21 from Rose's store on Passayunk avenue to the store of Hyman Rash. From there-- but just when does not appear-- they were removed to Winderman's place of business next door. The beds were taken to Rash's two days before the petition was filed, and the plaintiffs in error contend that the date of the offense is thus fixed as the 21st, and therefore that the beds could not have been received after the filing of the petition. The facts may be true, but the conclusion does not necessarily follow. The argument apparently does not consider that the offense charged is not the actual receiving, but the conspiring to receive. We do not see why the conspirators might not have finally agreed after the beds were removed from the Passayunk store on the 21st. No doubt the goods were in fact removed before the 23d, but the guilty agreement may not have been definitely made until afterward. Certainly, the conspirators would find it easier to receive and convert the goods if these were first put out of the court's reach, whose receiver would immediately seize whatever might be found on the bankrupt's premises. Aside
from this, however, the goods continued to belong to Rose or to her estate after November 21, and the mere taking them to Rash's on that date did not finally determine what was to be done with them. On the 21st Rose was not a bankrupt; she might never be a bankrupt-- in fact, she was not adjudicated until January 25-- and the goods might be returned to her. But in any event their status was still uncertain, and we think the jury might, with equal propriety, assign the final act of conspiring either to the 21st or to a date after the 23d. Moreover, even if the conspiracy was first formed not later than the 21st, we think there is something to be said for the view that it was a continuing conspiracy, contemplating further action during the next few days or weeks; and, if this be true, the distinction now contended for cannot be successfully drawn. U.S. v. Kissel, 218 U.S. 601, 31 Sup.Ct 124, 54 L.Ed. 1168. We repeat that the count is not for receiving, but for conspiring to receive, and of this after the date of bankruptcy we think there was evidence for the jury.
3. The sufficiency of the fifth count. This is attacked for duplicity on the ground that four separate offenses are charged therein. It is true that the count does charge the three defendants, in agreement with the other five persons named above, with conspiring to commit the following offenses: (a) Concealment of property by Rose Turetz; (b) making a false oath by Jacob Winderman; (c) presenting a false claim by Jacob Winderman; (d) fraudulently receiving property by the three defendants after the filing of the petition; but, in view of the decisions in Crain v. United States, 162 U.S....
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