Cohen v. United States
| Decision Date | 05 December 1929 |
| Docket Number | No. 4183.,4183. |
| Citation | 36 F.2d 461 |
| Parties | COHEN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Third Circuit |
William A. Gray, of Philadelphia, Pa., for appellant.
Calvin S. Boyer, Acting U. S. Atty., and Elmer C. Pfeiffer, Asst. U. S. Atty., both of Philadelphia, Pa.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
Cohen was a bankrupt. The indictment under which he was tried and convicted contained six counts. Three charged him with perjury in that he testified falsely in a proceeding before a referee; the fourth with making a false oath to his schedules; the fifth with concealing books; and the sixth with having withheld books from the receiver. On this appeal Cohen raises three questions. The first two do not grow out of the court's rulings or instructions on controverted issues of fact, for when on the stand Cohen's testimony was carefully limited by the direct examination to the single issue of his residence at the time of the execution of a search warrant, a matter which relates to the third question. Therefore these two questions are restricted to the sufficiency of the government's proof of essentials of the crime of perjury.
He first charges that the government failed to prove that he had actually been sworn in the proceeding before the referee. On this issue the counts alleged that on a certain day Cohen appeared before a named referee in bankruptcy, "a person qualified to administer oaths," and, "having been duly sworn by" him that "he would truly testify in his examination," testified falsely in the way described. In order to prove the oath, admittedly an essential in proving the crime of perjury in a bankruptcy examination, the government called the stenographer of the deceased referee who produced her transcribed notes of the hearing and testified in response to a question by the court that she recorded the oath as follows: "Samuel Cohen called to the stand; sworn by referee; examined by referee." On cross-examination the witness testified that she did not recall the actual administration of the oath, but she knew the referee administered it, not from her recollection independent of her notes or refreshed by her notes but because all witnesses were sworn in every case, and that she made a record of the oath administered in this instance. She further testified that the transcript, showing that the oath had been administered, was a true and correct transcript of the proceedings as taken from her original notes, that she took the minutes of the meeting, that she recorded everything that was done and did not record anything that was not done, and that the transcript showed accurately what transpired.
This testimony, admitted over the defendant's objection as to the formality of its proof, disclosed a complete and unchallenged record of the administration of the oath, supplemented by the oath of the witness that the record speaks the truth. She testified not from her present recollection, it is true, but rather from her past recollection recorded. This evidence would, without doubt, be admissible in a civil action. The J. S. Warden (C. C. A.) 219 F. 517, 519. Was it admissible in this criminal action to prove a like fact?
The stenographer, though not an official, was employed to take the testimony of witnesses in all bankruptcy proceedings before the referee. Her notes of proceedings and the resultant transcripts constituted the only record of the testimony before the referee and of what the referee did in the performance of his official duties. They were not official documents in a technical sense and therefore did not speak absolute verity but they were enough, when supplemented by the oath of the one who made them, to constitute prima facie proof of the facts there recorded. Mere want of a present and independent recollection of all the attending circumstances can not alone destroy their probative value. They were, of course, open to attack and, when confronted by evidence in rebuttal, there would arise a question for the jury as to the truth of the facts recorded, which question the court in this case submitted to the jury even though the appellant offered no evidence in rebuttal. We realize that on this subject no rule can be laid down which will apply to all cases but are of opinion that in the circumstances of this case the testimony adequately proved the administration of the oath and was properly admitted.
The appellant next says that the government failed to prove that he actually swore to the truth of the statements contained in his bankruptcy schedules. The schedules were admitted in evidence over the appellant's...
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United States v. Lynch
...may not now be heard to say that the report does not constitute prima facie evidence of the facts there recorded, Cohen v. United States, 3 Cir., 36 F.2d 461, 462. It also appears that defendant on cross-examination, was asked: "A. Isn't it true, Mr. Lynch, that in your report you took cred......
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