Bartkus v. United States

• Decision Date: 08 June 1927
• Docket Number: No. 3874-3877.,3874-3877.
• Citation: 21 F.2d 425
• Parties: BARTKUS v. UNITED STATES, and three other cases.
• Court: U.S. Court of Appeals — Seventh Circuit

21 F.2d 425 (1927)

BARTKUS v. UNITED STATES, and three other cases.

Nos. 3874-3877.

Circuit Court of Appeals, Seventh Circuit.

June 8, 1927.

John M. Zane, of Chicago, Ill., for plaintiffs in error.

George E. Q. Johnson and Edward J. Hess, both of Chicago, Ill., for the United States.

Before EVAN A. EVANS, PAGE, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

Plaintiffs in error were convicted of violating that portion of the conspiracy statute which provides: "If two or more persons conspire * * * to commit any offense against the United States, * * * and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined * * * or imprisoned, * * * or both." Comp. St. § 10201.

The offense against the United States sought to be charged as the object of the conspiracy is the violation of clause 1 of section 29b of the Bankruptcy Act, which, though amended since, at the time of the commission of the alleged offense read: "A person shall be punished, by imprisonment for a period not to exceed two years, upon conviction of the offense of having knowingly and fraudulently concealed while a bankrupt, or after his discharge, from his trustee any of the property belonging to his estate in bankruptcy." Comp. St. § 9613.

In substance the indictment charges that one of the plaintiffs in error, Bartkus, was president and manager of the Bridgeport Electrical Company, a corporation, and as such president and manager dominated the acts and doings thereof, and that the plaintiffs in error, anticipating and expecting that an involuntary petition in bankruptcy would be filed against the company, and that thereafter it would be adjudged a bankrupt, and that in said bankruptcy proceedings a trustee would be appointed of and for the estate in bankruptcy of the company, did conspire, combine, confederate and agree together "to the end and for the purpose that said Bridgeport Electrical Company, a corporation, while a bankrupt as aforesaid, unlawfully, knowingly, wilfully, and fraudulently should conceal from said trustee in bankruptcy of said Bridgeport Electrical Company, a corporation, a large amount of property, to wit, the sum of thirty five thousand dollars ($35,000.00), and, to wit, a large quantity of merchandise and electrical goods, and goods for the manufacture of electrical appliances, and fixtures (a further and more particular description thereof is to said grand jurors unknown) of the value of, to wit, thirty five thousand dollars ($35,000.00)." Various overt acts are alleged to have been done by the defendants in pursuance of and in furtherance of said conspiracy and to effect the object of the same.

The statute makes it a crime for two or more persons to conspire to commit — that is, themselves commit — the offense. It does not, in terms, make it a crime to conspire that some person other than the conspirators shall commit it. This probably accounts for the averment in the indictment that Bartkus was president of and dominated the Bridgeport Company. Bearing in mind that he who does a thing through another does it himself, we may construe the indictment to charge that plaintiffs in error conspired to commit the crime by causing the company to commit it. It is only by so construing it that the indictment can be held to charge the crime defined by the statute.

Although technical precision is not required, it would seem that the essential elements of the substantive offense should be stated when describing the object of the conspiracy. The statute denounces concealment from the trustee of property belonging to the estate in bankruptcy. There is no averment in this indictment that the property intended to be concealed was the property of the estate in bankruptcy.

The objection that there is no allegation that the corporation had been adjudged a bankrupt and a trustee had been appointed for it, is not well taken. Cohen v. United States (C. C. A.) 157 F. 651; Steigman v. United States (C. C. A.) 220 F. 63.

It is urged that there is a fatal variance between one material averment and the proof. The indictment charged that it was contemplated that the Bridgeport Electrical Company should be adjudged a bankrupt, and it should conceal property. The evidence shows that the correct name of the corporation was the Bridgeport Electric Company, and it is claimed that this is a fatal variance. This contention cannot prevail, under the case of Putnam v. United States, 162 U. S. 687, 16 S. Ct. 923, 40 L. Ed. 1118, where the charge was embezzlement of money from "National Granite State Bank" and the proof showed the correct name to be "National Granite State Bank of Exeter," and under the case of Beavers v. United States (C. C. A.) 3 F.(2d) 860, where the defendant was charged with having stolen from interstate commerce, and the indictment alleged that the freight was shipped by "Duke & Co." and the evidence showed the shipment was by "W. B. Duke Sons & Co."

As was stated by the Supreme Court in Bennett v. United States, 227 U. S. 333, at page 338, 33 S. Ct. 288, 289 (57 L. Ed. 531): "The essential thing in the requirement of...