Fraser v. United States, 9679.

• Decision Date: 05 February 1945
• Docket Number: No. 9679.,9679.
• Parties: FRASER v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

145 F.2d 145 (1944)

FRASER v. UNITED STATES.

No. 9679.

Circuit Court of Appeals, Sixth Circuit.

October 10, 1944.

Writ of Certiorari Denied February 5, 1945.

W. H. Fisher, W. C. Rodgers, and Wils Davis, all of Memphis, Tenn., for appellant.

Thomas C. Farnsworth, of Memphis, Tenn. (William McClanahan, R. G. Draper, and Thomas C. Farnsworth, all of Memphis, Tenn., on the brief), for appellee.

Before HICKS, SIMONS, and McALLISTER, Circuit Judges.

Writ of Certiorari Denied February 5, 1945. See 65 S.Ct. 586.

HICKS, Circuit Judge.

Appellant was charged with perjury, in violation of Sec. 125 of the Criminal Code, 18 U.S.C.A. § 231. The indictment contained four counts, and appellant was convicted upon the first, third and fourth counts and acquitted upon the second. The court imposed a sentence of five years imprisonment upon each count, the sentences to run concurrently. A fine of $2000 upon each count was also imposed.

The indictment grew out of statements made by appellant under oath in the course of a civil action brought by P. M. Barton and others against him and his associates, d.b.a. G. H. Britton Cotton Company, over the marketing of cotton. The civil suit was brought in the District Court for the Western District of Tennessee, the court from which this appeal was taken.

Count 1 charged that while appellant was a witness under oath on the trial of the civil case, and in response to questions by the presiding judge, as to how he had paid out or disbursed certain moneys, that had come into his hands in connection with the cotton marketing transaction, he testified to the following material matters which were not true and which he did not believe to be true:

"A. Well, I paid my sister a note that I owed her for several years.

"The Court: What is her name? A. Mrs. Jackson.

"The Court: Where does she live? A. Tuscaloosa, Alabama.

"The Court: How much did you pay her? A. Three thousand dollars.

"The Court: Proceeds of the Barton cotton? A. No sir; Leftwich cotton."

And that upon being interrogated further, in connection with the same transaction, appellant, in response to questions directed to him by an attorney for the plaintiffs, testified as follows:

"Q. Mr. Fraser, how did you send this money to your sister? What was the medium by which you transported it to her? A. Cash.

"Q. You mean you put it in an envelope? A. Yes, sir.

"Q. How did you get it down to her? A. She has a young son, and he came up and got it.

"Q. What is his name? A. E. S. Jackson, Jr."

Further: That in the same proceeding and in connection with the same transaction in response to other questions propounded to him by the Judge, appellant stated as follows:

"The Court: I would like to know when it was that you paid your sister this $3,000.00. Can you tell me about the time that was? A. I would say in July.

"The Court: July of last year? A. Yes, Sir.

"The Court: How do you fix that date? A. I am just going by my recollection."

Further: That in the same proceeding and in connection with the same transaction in response to questions directed to him by an Assistant U. S. Attorney, appellant testified as follows:

"Q. Mr. Fraser, what was the name and address of that sister to whom you paid this $3,000.00? A. Mrs. E. S. Jackson.

"Q. And her address? A. Tuscaloosa, Alabama; 816 12th Street.

"Q. Tuscaloosa, Alabama? A. Yes, sir.

"Q. And you paid her that money about when? A. Last summer.

"Q. What month? A. I think in July.

"Q. You paid her $3,000.00 in cash? A. Yes, sir.

"Q. Sent it to her in cash, by her son? A. Yes, sir.

"Q. Some time about July, 1942? A. Yes, sir."

The indictment averred that all of these statements made by appellant were false and untrue and known by him to be false and untrue and that he did not believe them to be true and that they were material matters; that the facts were, that appellant had not paid to Mrs. E. S. Jackson the sum of $3000 cash, or otherwise, and had not transmitted said amount of money to her by her said son, E. S. Jackson, Jr., but had concealed or disposed of same and that said false and untrue statements were material to the issue in controversy in that the whereabouts and disposition of the proceeds from the sale of the cotton in controversy in said litigation by appellant were a proper subject of inquiry raised by the intervening complaint of the United States and the pleadings.

Count 3 charged that on the same day in the same civil action, in response to questions as to the disposition of moneys in the same transaction, appellant testified to the following material matters which were not true and which he did not believe to be true:

"Q. Mr. Fraser, did you pay off the balance of the indebtedness on your home in 1942? A. I will answer you this way —

"Q. Just answer my question. A. Did we pay it off in 1942?

"Q. Did you pay off the balance of the indebtedness on your home in 1942? A. I don't know. I made a trade, and I think these people reduced the indebtedness to around $2500.00 or $2600.00. That was made in 1940 or 1941.

"Q. Are you sure it wasn't made in 1942? A. No; 1940 or 1941.

"Q. Whom did you make that trade with? A. Brigance. He was sick, and they didn't have any money.

"Q. Where is he? A. He is dead.

"Q. Who have you been paying the money to? A. Mrs. Brigance.

"Q. You haven't paid anything since 1940 or 1941? A. I haven't; no."

The indictment avers that the testimony by appellant that he had not paid anything on his mortgage since 1940 or 1941 was false and untrue and was material; that appellant did not believe this testimony to be true and that appellant had in fact on or about September 28, 1942, paid off the mortgage indebtedness existing against his home by using the proceeds or a portion thereof which he had received from the sale of cotton involved in the litigation.

Count 4 charged, that on December 15, 1942, while appellant was a witness by deposition and in response to questions directed to him by the Assistant United States Attorney, he testified on oath touching a material matter, to wit, as to how much money he had received from the sale of cotton and therein gave material evidence which was not true and which he did not believe to be true, to wit:

"Q. Tell me, as nearly as you can, how much money you got for the cotton you sold that is involved in this law suit? Give us your best estimate in that connection, Mr. Fraser. A. I got by agreement with Harris $20,000.00 from the Union Planters Bank, and $7,000.00 from the Bank of Commerce. There were receipts for 291 bales of cotton, and I imagine — I don't know the facts — that there were 50 to 60 bales of the Barton cotton in that number. The other cotton wasn't Barton's.

"Q. You mean, then, that all of the money you have got out of the Barton cotton that is involved in this particular law suit is $27,000.00 plus the price of 60 bales of cotton? A. Yes, sir; as relates to Barton.

"Q. Suppose there were 60 bales of cotton, what would that be worth? A. I would say $3,000.00.

"Q. $3,000.00. A. Yes, making about $30,000.00."

That these statements were false and untrue and known by appellant to be false and untrue and were material to the matter in litigation; that the facts were, that appellant had received proceeds from the sale of cotton or from the proceeds derived therefrom an amount greatly in excess of $30,000, to wit, the additional sum of approximately $17,000; and that the matter in issue was a proper subject of inquiry raised by the pleadings.

We undertake a general resume of the substance of the litigation out of which the indictment sprang.

The complaint therein alleged that defendants (appellant and others) had contracted to sell for the plaintiffs, Barton and others, some 1859 bales of cotton which were pledged to the Mid South Cotton Growers Association to secure a loan in the sum of $62,871.59; that defendants took possession of the cotton and sold it in May and June 1942; that it had an approximate market value of $130,000; that the lien was discharged, leaving a balance to be accounted for of approximately $67,128.41 of which $57,928.50 should have been held in escrow, for the payment of a Government tax. It was alleged that the tax was not paid, that the amount thereof was not placed in escrow as agreed upon, and that the balance in excess of the tax, or approximately $9,200, was not paid to the plaintiffs. Plaintiffs demanded an accounting to be evidenced by the original books, records, invoices, etc., including the names of the parties to whom the funds were paid, the prices received and the disposition of the money, etc.

An amended complaint alleged that appellant had received and was fraudulently concealing the proceeds of the cotton in certain lock boxes in banks and that he was insolvent and a temporary injunction was sought to prohibit the removal of the contents of the boxes.

The Government intervened, making all parties defendants and set up its claim for the tax imposed upon the growing of cotton in excess of allotted acreages. It was alleged that appellant had received and was concealing the proceeds of the cotton in certain banks and a judgment was sought against all parties for the amount of the tax and an injunction was prayed against appellant and his agents and the banks from removing or disposing of the funds found in the lock boxes.

An injunction was issued, forbidding appellant and his wife from entering the boxes and from disposing of or concealing any of the proceeds from the sale of the 1859 bales of cotton. Upon application of the Government, the court entered an order allowing appellant's deposition to be taken, pursuant to Rule 26 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and a subpoena duces tecum was issued, directing appellant to bring in all documents, papers, contracts, etc., covering the sale and disposition of the cotton.

Appellant was examined and the examination was devoted primarily to the...