Kahn v. United States, 4876.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation20 F.2d 782
Docket NumberNo. 4876.,4876.
Decision Date02 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.

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:

"Q. Did you order any tires from the Cupples Company that were shipped to the Rhino Tire Stores and charged up to the Right Clothes Shop? A. No, sir.

"Q. Never did? A. No, sir; they were written for and canceled.

"Q. Order, do you mean, canceled? A. Everything that went into the Rhino Tire Stores. There was no occasion to get any order in there at all. Originally I wrote that, and afterwards discontinued, because we had enough stock.

"Q. Is that a letter you wrote to the Cupples Company? A. I don't think I ever mailed this, because we received nothing from them billed to the Right Clothes Shop.

"Q. Did you write that letter? A. I wrote this letter, but never sent it, because we did not need merchandise.

"Q. It was not sent; what did you do with it? A. I don't know what I did with it; however, we didn't get any merchandise from Cupples Company charged to Right Clothes Shop."

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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15 cases
  • Grand Trunk Western R. Co. v. HW Nelson Co., 8552.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 13 Marzo 1941
    ...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 ......
  • Johns v. State
    • United States
    • United States State Supreme Court of Wisconsin
    • 6 Junio 1961
    ...if a defendant requests no charge upon the subject, for the trial judge to say nothing about it.' In Kahn v. United States, 6 Cir., 1927, 20 F.2d 782, 784, also holding it was not error for the trial court, without a request, to instruct the jury that defendant's[14 Wis.2d 127] failure to t......
  • Franano v. United States, 15467-1.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • 22 Julio 1965
    ...doctrine of self-incrimination to an absurdity." Compare Judge Hicks' similar comment and ruling in Kahn v. United States, (6th Cir. 1927) 20 F.2d 782 at 784; United States v. Maloney, (2nd Cir. 1959) 262 F.2d 535 at 539 (dissenting opinion of Judge Hincks); and Mr. Justice Frankfurter's co......
  • National Labor Relations Board v. Kentucky Util. Co., 10882.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 7 Junio 1950
    ...other provisions of the Board's Order, and, accordingly, we consider them as not at issue in this Court. Kahn v. United States, 6 Cir., 20 F.2d 782; Grand Trunk Western R. Co. v. H. W. Nelson Co., 6 Cir., 116 F.2d 823, The order of the Board is modified by striking therefrom paragraphs 1(a)......
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