Alkon v. United States

• Decision Date: 13 August 1908
• Docket Number: 766.
• Citation: 163 F. 810
• Parties: ALKON v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

163 F. 810

ALKON v. UNITED STATES.

No. 766.

United States Court of Appeals, First Circuit.

August 13, 1908

Elisha Greenhood, for plaintiff in error.

Asa P French, U.S. Atty., and William H. Garland, Asst. U.S. Atty.

Before COLT, PUTNAM, and LOWELL, Circuit Judges.

PUTNAM Circuit Judge.

Barish and Alkon were indicted for a conspiracy, the substance of which was that Barish should purchase goods, and Alkon should conceal them, and that afterwards Barish should go into bankruptcy, and the concealment should continue after the bankruptcy, with the intention that at some subsequent time the profit by the concealment should be divided between Barish and Alkon. Both were convicted, but the only writ of error before us is Alkon's.

We are informed by our own records, to which by the settled rules we are authorized to turn, that Barish sued out a writ of error but that on his own motion the same has been dismissed; and it is now too late for him to sue out another. The only two persons charged as conspiring were Barish and Alkon, so that except in extreme cases, such as the death of one of the alleged conspirators or his absence from the jurisdiction unless both could be legally convicted, neither could be. Nearly all the exceptions brought to our attention were taken jointly by both Barish and Alkon. Not only for this latter reason, but also because of the fact of the necessity of a legal conviction of both alleged conspirators in order to accomplish the legal conviction of either, it would seem as though in a case of this character there should be but one writ of error, and that a joint one. Nevertheless the practice is the other way, which is also in accordance with the authorities. 1 Bishop's New Criminal Procedure, Sec. 1039. We are compelled to deal with the position as we find it, remarking that it may be, following out the rules practiced in High v. Coyne, 178 U.S. 112, 20 Sup.Ct. 747, 44 L.Ed. 997, and in Washington Company v. Lansden, 172 U.S. 534, 556, 19 Sup.Ct. 296, 43 L.Ed. 543, that we might reverse the judgment in toto as against both Barish and Alkon, if a proposition to that effect had been submitted to us by the parties in such form that we could properly consider it.

The first proposition is that the indictment alleged no offense because there was no existing bankruptcy when the conspiracy originated, while the statute--section 29 of the bankruptcy act of 1898 (Act July 1, 1898, c. 541, 30 Stat. 554 (U.S. Comp. St. 1901, p. 3433))-- punishes only concealment of goods 'while a bankrupt'; and it is said that, as the alleged conspiracy related only to the doing of something which was not illegal when the conspiracy originated, the statute under which the indictment was found did not apply. That result would follow if the proposition as to the extent of the conspiracy was true; but it included an intent to continue the concealment until after Barish became a bankrupt, and it was like all conspiracies in that it related to something in futuro. The plaintiff in error cites no case in support of his position; and in common with the Circuit Court of Appeals for the Second Circuit, in Cohen v. United States (C.C.A.) 157 F. 651, 654, it does not occur to us that there is anything in principle or on authority which invalidates the indictment on this account.

At the close of the proofs for the United States, Alkon and Barish jointly moved that the court direct a verdict in their favor. The court refused this request. As we understand the record, the court expressly reserved an exception to this refusal notwithstanding Alkon and Barish afterwards offered proofs in their own behalf. Passing by any question whether this assurance on the part of the court should not be accepted as avoiding the common rule by virtue of which this subsequent going on with the defense waived the motion to direct a verdict, we cannot as a court of law hold that the District Court was in error in refusing the motion. There was evidence that goods purchased by Barish were stored in abnormal quantities on Alkon's premises, and that these goods were not disclosed to Barish's trustee in bankruptcy; and some of the circumstances with reference thereto were of a decidedly suspicious character. There was evidence that Alkon knew the facts in regard to the storage of goods, and of a conversation between Alkon and one Lambkin, sufficient to bring before the jury the question whether Alkon had not made a general confession which covered the fact that he contemplated Barish's bankruptcy and a fraudulent intent in reference thereto. The rule of law is well settled that in conspiracy cases it is often necessary to resort to inferences, and that it is proper so to do. It is also settled that it is not required to prove by direct evidence an agreement to act together, and that 'ordinarily it is only necessary to prove the acts of particular defendants, leaving the question of conspiracy to be determined by inference. ' Wharton's Criminal Law (10th Ed., 1896), Sec. 1401; 2 Bishop's New Criminal Law, Sec. 227 (2); Russell on Crimes (International Ed., 1896) 533.

The record does not purport to give all the evidence, because the bill of exceptions concludes with a statement that what is recited in it was 'substantially all.' The case in the way shown to us is exceedingly thin, and, if we were judges of the fact as well as of the law, it may be that we should find against the United States in reference thereto. As, however, the proofs in cases of conspiracy are frequently purely inferential, we cannot say that there were not circumstances which appeared at the trial, but which are not shown, and which justified the District Court in sending the case to the jury. In the form in which the case comes to us, it is not so bare of possibilities that, sitting as a court of law, we can declare that there was error in overruling this motion.

There were put in evidence two conversations with Lambkin, the purpose of which was to show an intent on the part of Alkon to induce Lambkin to enter into a scheme like that charged in the indictment. These conversations were objected to as res inter alios; but the United States claim that they come within the rules by virtue of which various independent offenses akin to the one charged, and nearly contemporaneous with it, are sometimes allowed to be proved. So far as this proposition is concerned, it may be these conversations go beyond what the law permits; but the last one, taken as a whole, was admissible.

It was as follows: 'That later the witness accidentally met Alkon, and Alkon Said: 'Did you decide about that scheme I was telling you about?' That the witness said, 'Which one?' and Alkon replied: 'You know I spoke to you about getting all the goods you possibly could and turn them over to me, and I would see your way through bankruptcy without any trouble.' That Alkon said further that, if any of the dealers wanted any reference regarding the witness's credit, he would give the witness all the reference they wanted. That witness told Alkon that he 'did not care to be mixed up in any such business.' That he met him a third time and Alkon asked him again if he had decided on the same subject, and, on witness saying that he 'did not care to be mixed up in any such business,' Alkon said: 'Why, it's a cinch. I have handled several of those cases."

This conversation was about two months after the date of the alleged conspiracy, and it was an open admission by...