Skuy v. United States

• Decision Date: 27 October 1919
• Docket Number: 5182.
• Parties: SKUY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

261 F. 316

SKUY v. UNITED STATES.

No. 5182.

United States Court of Appeals, Eighth Circuit.

October 27, 1919

H. B Martin, of Tulsa, Okl. (Crossland & Crossland, of Paducah Ky., on the brief), for plaintiff in error.

C. W Miller, Sp. Asst. U.S. Atty., of Muskogee, Okl. (W. P McGinnis, U.S. Atty., of Muskogee, Okl., on the brief), for the United States.

Before SANBORN and STONE, Circuit Judges, and TRIEBER, District Judge.

SANBORN Circuit Judge.

Abraham Skuy, the defendant below, was indicted for perjury in three counts, in that, in his examination as a bankrupt before the referee in bankruptcy: (1) He falsely testified that he never sold any of his goods below cost; (2) he falsely testified that he never sold any of his goods to Jacob Fell; and (3) he falsely testified that he never removed any goods from his store in an automobile. After the assistant United States attorney had introduced testimony tending to sustain each of these charges, and the defendant had introduced the testimony of six witnesses which tended to contradict the testimony on behalf of the United States, the assistant attorney announced that he had reached the conclusion that the evidence relative to the charges in the first and second counts did not warrant the court in submitting that evidence to the jury, there was no further controversy regarding these counts, and at the close of the trial the court instructed the jury to return a verdict for the defendant thereon.

The evidence on the third count presented two issues of fact: First, whether or not the defendant ever testified that he never took any goods out of his store in an automobile; and, second, whether or not he did take any goods out of his store in an automobile. On each of these counts the evidence was conflicting, but the real issue tried was whether or not the defendant, about April 15, 1916, removed a large quantity of goods from his store in the nighttime. Upon this issue two witnesses, Evans and Lee, testified that he did, and four witnesses, the defendant and Oscar Stekoll, Abraham Stekoll, and Lewis Stekoll, testified that he did not. All these witnesses, except Lee, were members of the Jewish race. In April, 1916, Evans was engaged in the same kind of business as that which Skuy conducted, gents' furnishings and loans, and he occupied the store by the side of Skuy's store. Lee at that time was an employe of Evans, with whom he roomed and slept. At the time of the trial, however, he was a private in the Marine Corps. In April, 1916, Evans was unfriendly to Skuy, and Lee became so before he testified. After Evans and Lee had testified for the government, and Skuy and three other witnesses had testified for the defendant as to the removal of the goods, M. Himelstein, the Jewish rabbi in charge of the Jewish Congregation at Tulsa, and five other Jews, testified that they knew the reputation of Skuy and Evans for truth and veracity in the community in which they lived, and that Skuy's was good and Evans' was bad. There was no contradictory testimony on this question.

In the course of the trial Mr. William Reedman was called on behalf of the defendant, and testified that he lived in Tulsa; that he had lived there for 10 years; that he was then and had been during these 10 years engaged in the mercantile business; that he was a 'member of the Jewish race and persuasion'; that he knew the reputation of Skuy and Evans for truth and veracity; that Evans' reputation was not very good, but that Skuy 'is a good boy.' On the cross-examination of this witness, the first question asked by the assistant United States attorney was, 'What was the date of your failure, Mr. Reedman?' Defendant's attorney objected and said:

'Nothing in the evidence here that I have observed that this man has ever failed.'

Then the examination proceeded in this way:

'Q. You are a special friend of Mr. Skuy's, are you not? A. Not a special friend; same as everybody is.

'Q. I will ask you this question: If at the time you failed, if you did fail, you didn't store your goods in Mr. Skuy's store until a financial settlement was made with your creditors? A. There was no such things like that.

'Q. You know Mr. Stekoll, do you not? A. Yes, sir.

'Q. What connection did he have with the matter I have just referred to?

'Mr. Martin: If the court please, I object to that as irrelevant and immaterial.

'The Court: Objection sustained.'

Later, in the cross-examination, after inquiring concerning Mr. Reedman's business relations with Mr. Robert A. Stekoll, the assistant attorney again returned to Mr. Reedman's suggested failure in this way:

'Q. Was he (Stekoll) one of your creditors in your bankruptcy matter? A. No, sir.

'Q. Did he act as trustee? A. No, sir.

'Q. Did he have any connection whatever with your bankruptcy matter? A. None at all, sir.

'Q. Do you state that no part of your goods were stored in Skuy's store pending a settlement with your creditors in your bankruptcy matter? A. Positively not.

'Mr. Crossland: I move to exclude that about the bankruptcy, or anything else.

'The Court: Overruled.

'Mr. Crossland: Exception.'

The witness was then dismissed, and the court then and there instructed the jury that the answers of this witness were testimony for their consideration, but that counsel's questions were not, and that, even though it might appear from the testimony of the witness that he had been a bankrupt, he was presumed, until the contrary was shown, to have properly availed himself of the bankruptcy law, and it was not a matter which should be permitted in any way to affect his testimony in the case.

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