Knoell v. United States

Decision Date02 February 1917
Docket Number2121.
Citation239 F. 16
PartiesKNOELL et al. v. UNITED STATES.
CourtU.S. Court of Appeals — 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. 625, 16 Sup.Ct. 952, 40 L.Ed. 1097, and in Brewing Co. v. U.S. (C.C.A. 8) 206 F. 386, 124 C.C.A. 268, we think it unnecessary to discuss the objection. Although a conspiracy may contemplate the commission of four offenses, it still remains a single crime. In our opinion the count is correctly drawn, and was properly upheld.

4. The refusal to direct a general verdict of acquittal. We are not sure whether this objection is seriously pressed, but (if it be) we content ourselves with saying that in view of the evidence such a direction could not properly have been given.

5. The court's instructions concerning the testimony of an accomplice. The brief of the plaintiffs in error admits that the charge to the jury--

' * * * may be, perhaps, fairly summarized in the statement that the trial judge did charge the jury to the utmost extent about the necessity of using caution in scrutinizing the testimony of these witnesses.'

But complains that:

'* * * While the trial judge did warn them of the corrupt nature of this testimony and its inherent unreliability, and also further instructed the jury as to the advisability of looking into the testimony of other witnesses to find if this impeached testimony was corroborated thereby, (he) did instruct the jury that, notwithstanding all this warning, if in their judgment they believed, notwithstanding the corrupt source from which the testimony came, that it was nevertheless true, they could render a verdict of guilty upon that testimony uncorroborated.' We think the instructions thus summarized are justified by Richardson v. U.S. (C.C.A. 3) 181 F. 9, 104 C.C.A. 69; Diggs v. U.S. (C.C.A. 9) 220 F. 545, 136 C.C.A. 147, affirmed 242 U.S. 470, 37 Sup.Ct. 192, 61 L.Ed. . . .; Holmgren v. U.S., 217 U.S. 523, 30 Sup.Ct. 588, 54 L.Ed. 861, 19 Ann.Cas. 778. In the latter case the precise point did not arise. The Supreme Court was asked to hold that the trial judge had erred in refusing the following instruction:
'I charge you that if you believe the testimony of the witness Frank Werta, then that said witness was an accomplice in crime with the defendant; and I instruct you that before you can convict said defendant, the testimony of the witness Frank Werta should be corroborated by the testimony of at least one witness, or strong corroborative circumstances.'

But the refusal below was upheld, Mr. Justice Day saying:

'It may be doubtful whether Werta can be regarded as an accomplice. * * * Be that as it may, the request did not properly state the law, as it assumed that Werta was an accomplice, a conclusion which was controverted, and against which the jury might have found in the testimony'

-- and adding:

'It is undoubtedly the better practice for courts to caution juries against too much reliance upon the testimony of accomplices, and to require corroborating testimony before giving credence to them. But no such charge was asked to be presented to the jury by any proper request in the case, and the refusal to grant the one asked for was not error.'

This seems to us to mean necessarily that a jury may rely upon the testimony of an accomplice, but that the judge should caution them against believing it unless it has been corroborated. The decided weight of authority is in favor of the rule as laid down in the instructions now assigned for error. See, also, 1 Ruling Case Law, p. 166, Sec. 13 et seq.

6. The admission of testimony given by John Knoell and George Knoell before the referee in the proceeding against Rose Turetz. The objection is that this testimony was given under compulsion and therefore could not be used in the...

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