Kahn v. United States

• Decision Date: 07 April 1914
• Docket Number: 238.
• Citation: 214 F. 54
• Parties: KAHN v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

214 F. 54

KAHN v. UNITED STATES.

No. 238.

United States Court of Appeals, Second Circuit.

April 7, 1914

W. M K. Olcott and Terrence J. McManus, both of New York City, for plaintiff in error.

H Snowden Marshall and Kenneth M. Spence, both of New York City, and Roger B. Wood, for the United States.

Before LACOMBE, COXE, and WARD, Circuit Judges.

COXE Circuit Judge.

The indictment contains two counts. The first count under which the defendant was convicted-- the second count being dismissed by the court-- charges the defendant with having knowingly and fraudulently made a false oath in a proceeding in bankruptcy. The specific charge is that in the bankruptcy proceedings instituted against the defendant and Louis J Kahn, the defendant, having been duly sworn in a proceeding before Referee Olney, gave false testimony. The facts sworn to by him, which are alleged to be false, were as follows:

First. That he, the defendant, borrowed $3,000 from Aaron Waldman to settle a case which was brought against him by Daniel Pimenthal.

Second. That he did settle the case by giving nine notes in the sum of $250 each, aggregating $2,250, and with the money borrowed from Waldman he paid one of the notes amounting to $250 and paid $250 to his attorney Joseph Lichtenberg for services and thereafter he paid another of the said notes amounting to $250.

Third. That he repaid the said Waldman with moneys belonging to his firm--Kahn Bros. & Co.

The indictment charges that it was not true that the defendant borrowed $3,000 from Waldman or that he borrowed said sum to settle the Pimenthal suit or that he did settle the said suit, by giving notes as alleged, or in any other manner. It charges further that it is not true that the defendant paid any of the said notes from moneys borrowed from Waldman or from any other moneys or that he repaid Waldman the moneys loaned by him. The indictment further charges that when he swore before the referee, the defendant well knew that he did not borrow the sum of $3,000 from Waldman at any time and that he did not settle the said case either by giving notes or in any other manner and that he did not pay any of the notes given in settlement of the Pimenthal Case and that he did not repay Waldman any of the money which had been loaned by him to the defendant.

There can be no doubt that the borrowing of the money from Waldman and the giving of the notes to Pimenthal in settlement of the suit brought by him against the defendant were material, relevant and proper subjects of inquiry before the referee and that if the bankrupt swore falsely as to these matters he was guilty of having made a false oath under the statute above referred to.

This controversy and the testimony bearing thereon was clearly stated to the jury by the trial judge and they were instructed that: 'The question in this case is whether, upon and at this proceeding before the referee he (defendant) swore 'knowingly, fraudulently and falsely,' and that is the question you have to consider.'

No exception was taken to the charge, no requests to charge were made, no motion to dismiss or to direct a verdict was made at the close of the testimony. The evidence tended to show that each and all of the three statements as before enumerated were false. It is said, however, that their falsity was not shown by the clear and convincing proof necessary in perjury cases, which the defendant maintains requires the direct testimony of at least one witness supported by proof of corroborating circumstances. It must be remembered that this prosecution is brought under a special provision of the Bankruptcy Act making it an offense, punishable by imprisonment for a period not exceeding two years, to make a false oath, knowingly and fraudulently in a proceeding in bankruptcy. Of course, broadly stated, this is a perjury statute, but...