Arine v. United States

• Decision Date: 01 February 1926
• Docket Number: No. 4669.,4669.
• Citation: 10 F.2d 778
• Parties: ARINE v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

10 F.2d 778 (1926)

ARINE v. UNITED STATES.

No. 4669.

Circuit Court of Appeals, Ninth Circuit.

February 1, 1926.

Jay C. Allen and Frank S. Griffith, both of Seattle, Wash., for plaintiff in error.

Thos. P. Revelle, U. S. Atty., and C. T. McKinney, Asst. U. S. Atty., both of Seattle, Wash.

Before HUNT, RUDKIN, and McCAMANT, Circuit Judges.

McCAMANT, Circuit Judge.

Defendant reserved an exception to the denial of his motion for a directed verdict, interposed at the close of the government's case. The government offered proof of the inventory value of defendant's merchandise on January 2, 1924, and of the purchases made by him during the year. From this total there was deducted the amount of his sales during the year, as listed in his books, and the inventory value of his stock when a receiver took possession, October 27, 1924. These figures showed a shortage of $26,184.41. There was further evidence that towards the end of the time when he was in business he received the proceeds of sales in cash and did not deposit this money in any bank.

Proceedings in involuntary bankruptcy were begun November 20. With the consent of defendant there was an adjudication of bankruptcy on the 8th of December, and H. E. Warner was elected trustee January 2, 1925. Defendant's contention is that the evidence as to the condition of his stock and the amount of his sales prior to October 27, 1924, is insufficient to charge him with concealment of assets subsequent to January 2, 1925.

If a bankrupt conceals his property prior to his bankruptcy, and continues to conceal it after the trustee is appointed, he is guilty of a violation of the statute. Cohen v. U. S., 157 F. 651, 654, 85 C. C. A. 113; U. S. v. Rhodes (D. C.) 212 F. 513, 515, 516. Evidence of concealment prior to bankruptcy is admissible. U. S. v. Cohn (C. C.) 142 F. 983.

On an application to discharge the bankrupt, such a showing as is made in this case has been held insufficient to prove fraud. In re Idzall (D. C.) 96 F. 314; In re Leslie (D. C.) 119 F. 406. The same character of proof is held insufficient as a basis for punishment for contempt. In re Haring (D. C.) 193 F. 169, 173. In these cases the court was a trier of the facts. The question presented on this record is whether there was sufficient evidence to be submitted to the jury. We think that there was, and that the District Court did not err in refusing a directed verdict.

Error is assigned on the admission in evidence of Exhibit 10, which is a memorandum book kept by the defendant. At the bankruptcy examination the defendant produced it, and it was handed to the trustee over the protest of the defendant. The book contains memoranda with reference to the business and assets of the defendant, and by the express provisions of section 70 of the Bankruptcy Act (Comp. St. § 9654) the trustee is entitled to all such records. In re Paleais (C. C. A.) 296 F. 403, 407.

It is also contended that there was error in permitting R. P. Fraser, a witness for the government, to summarize the contents of the books. He qualified as an expert accountant, and it is well settled that his compilation of the receipts and sales of goods was admissible. Burton v. Driggs, 20 Wall. 125, 136, 22 L. Ed. 299; Lemon v. U. S., 164 F. 953, 960, 961, 90 C. C. A. 617; San Pedro Lumber Co. v. Reynolds, 121 Cal. 74, 53 P. 410, 413.

Jacob Pearl was called as a witness for the government. He testified on direct examination that he had loaned the defendant money and taken his car, apparently as security; that subsequently the defendant's wife, who was Pearl's sister, "started to cry for the car," and Pearl told the defendant Pearl did not want the car. On redirect examination, counsel for the government said: "You told me in my office that you bought a car from Mr. Arine, and you figured Mr. Arine had skinned you, and would not take it back, or give you the money, either." This statement was objected to, and over the objection and exception of defendant the witness said: "Yes, sir; but I did not explain myself right. But I told him in the office that way. I did not want the car, but my sister wanted the car, and we settled that way."

When a witness gives affirmative testimony hostile to the party calling him, he may be asked if he did not, at a specified time and place, make a contrary statement. The general rule is that a party will not be permitted to impeach his own witness. Pearl's testimony as to the car on his direct examination was not hurtful to the government, but was irrelevant to the issues. It is held that in such case an impeaching question is improper, and that any statement evoked in response thereto is hearsay. State v. Catsampas, 62 Wash. 70, 72, 112 P. 1116; Ferris v. Todd, 124 Wash. 643, 645, 215 P. 54; Loving v. Commonwealth, 80 Ky. 507, 511; Sturgis v. State, 2 Okl. Cr. 362, 390, 102 P. 57, 68.

The testimony is also objectionable as involving a collateral matter. The fact that the defendant had overreached his brother-in-law in an automobile deal has no tendency to prove him guilty of concealing money and assets from his trustee in bankruptcy. This assignment of error is well taken.

There was no error in admitting Exhibit 11, which consisted of invoices for purchases found on the defendant's premises, and which presumably listed purchases of merchandise he had made during 1924.

The testimony of Pauline Matsken tended to show that the defendant and his counsel had suggested to her what her testimony should be. On cross-examination she...