Kahn v. United States, 4876.
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
| Citation | 20 F.2d 782 |
| Docket Number | No. 4876.,4876. |
| Parties | KAHN v. UNITED STATES. |
| Decision Date | 02 July 1927 |
Edward G. De Gree and John McNeil Burns, both of Detroit, Mich., for plaintiff in error.
Edw. J. Bowman, of Grand Rapids, Mich. (L. H. Grettenberger, of Grand Rapids, Mich., on the brief), for the United States.
Before DENISON, and MOORMAN, Circuit Judges, and HICKS, District Judge.
Kahn was convicted of perjury, and prosecutes this writ of error.
There are nine assignments of error, but we confine our consideration of the case in this opinion to only those four raised and discussed in the brief. Rule 20 of this court; I. T. S. Rubber Co. v. Essex Rubber Co., 272 U. S. 429, 47 S. Ct. 136, 71 L. Ed. ___, decided Nov. 22, 1926, and Eastman Kodak Co. of New York v. Southern Photo Materials Co., 47 S. Ct. 400, 71 L. Ed. ___, decided Feb. 21, 1927, both opinions by Mr. Justice Sanford.
First. It is insisted that there is no evidence showing the materiality of the alleged false testimony. This testimony is set out in the indictment, and is substantiated by the proof, as follows:
The evidence indicates that Kahn was a bankrupt, and at the instance of his trustee he was ordered to appear before the referee for examination by authority of section 7, cl. 9, and section 21a of the Bankruptcy Act (Comp. St. §§ 9591, 9605), and he gave his testimony upon that examination. He had been operating these two stores under these two names. One with its merchandise he had sold; the stock of the other constituted the bankrupt estate. To trace the property, the unpaid price of which was a bankruptcy debt, it is obvious that this testimony was relevant and material to the matter in respect to which the examination was authorized by the above-mentioned sections of the Bankruptcy Act, and in respect to which the oath was administered to Kahn as a witness, to wit: "You solemnly swear that the evidence that you shall give in this matter now here pending * * * in bankruptcy shall be the truth, the whole truth and nothing but the truth. * * *" There was therefore sufficient evidence touching the materiality of the alleged false testimony to justify the court in declining to direct a verdict.
Second. The point is made that the introduction in evidence of the articles of incorporation of the Rhino Tire Stores was inadmissible and prejudicial. The burden was upon the defendant in error to establish beyond a reasonable doubt that the testimony upon which the indictment was predicated was false. The effect of Kahn's testimony is that he did order tires from the Cupples Company to be shipped to the Rhino Tire Stores, but that he had canceled the order or had not mailed the letter (Government's Exhibit D) because the tires were not needed. This Exhibit D was dated February 7, 1925, but the articles of incorporation of the Rhino Tire Stores set forth that this store before its incorporation had in stock 250 new Cupples tires and 250 Cupples tubes, and this statement is verified by the oath of plaintiff...
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...We treat all those that are not briefed as abandoned. (This court, Revised Rules January 1, 1940, Rule 21); Kahn v. United States, 6 Cir., 20 F.2d 782. Appellee was a general contractor and, pursuant to the request of appellant, was the successful bidder for the grading and construction of ......
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