In re Gottman

• Decision Date: 17 March 1941
• Docket Number: No. 214.,214.
• Citation: 118 F.2d 425
• Parties: In re GOTTMAN.
• Court: U.S. Court of Appeals — Second Circuit

118 F.2d 425 (1941)

In re GOTTMAN.

No. 214.

Circuit Court of Appeals, Second Circuit.

March 17, 1941.

John T. Cahill, U. S. Atty., of New York City (David L. Marks and Arnold C. Stream, Asst. U. S. Attys., both of New York City, of counsel), for United States, amicus curiae.

James D. C. Murray, of New York City (Milton Pollack, of New York City, of counsel), for appellant.

Before SWAN, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

CHASE, Circuit Judge.

This appeal is from an order of a district judge sitting by assignment in the District Court for the Southern District of New York adjudging the appellant guilty of a criminal contempt of court. Appellant was sentenced to a term of imprisonment and denied bail which was later granted, however, by a circuit judge.

The circumstances leading to the judgment and sentence from which the appeal was taken are as follows:

A civil case was being tried to a jury in the district court in which the plaintiff, one Schweinert, was seeking to recover from the Insurance Company of North America, upon a policy of insurance issued by the latter, for the loss of jewelry. A bracelet was claimed by the plaintiff to have been among the articles lost and the defense, in part at least, was that the proof of loss filed by the plaintiff contained a fraudulent description of that piece of jewelry. The plaintiff, admitting the inaccuracy of the description, insisted that it was merely a mistake.

The appellant was an intimate friend of the plaintiff who had furnished the description of the bracelet which went into the proof of loss. He was not called as a witness for the plaintiff but was called by the defendant during the presentation of its defense and examined in respect to the matters in issue. But this was not the extent of his examination. He was asked if he were a doctor and replied that he was not. Then he was asked whether he had testified in another case before a city magistrate that he was a doctor. He replied at first that he had not testified in that case; and then that he couldn't recall so testifying; and finally, when shown the stenographer's minutes, admitted that he had, explaining that he had forgotten as about two years had elapsed and he had merely been examined informally in the magistrate's court when he had appeared there in behalf of a friend. Then he was asked if he had registered at hotels in New York under assumed names and denied that he had until names he had used at certain hotels there were put into the questions asked him and then he admitted that he had so registered and lived for short periods under such assumed names at such hotels. No one now claims that the questions asked and answered concerned matters material to the issues on trial and obviously they did not. The judge actively participated in the examination which brought about these false denials and later the admissions of the truth. He thereupon suspended the trial of the civil action and, in the absence of the jury, proceeded at once to conduct a hearing to determine whether the appellant should be adjudged in contempt. Appellant, who was not represented by an attorney, was then examined further regarding his past conduct and held in contempt.

The power of a federal court to punish contempts of its authority flows from 28 U.S.C.A. § 385 and that power when properly exercised undoubtedly includes the punishment of a witness who wilfully testifies in...