Kerrch v. United States

• Decision Date: 03 June 1909
• Docket Number: 772.
• Citation: 171 F. 366
• Parties: KERRCH et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

171 F. 366

KERRCH et al. v. UNITED STATES.

No. 772.

United States Court of Appeals, First Circuit.

June 3, 1909

James E. Cotter (Harvey H. Pratt and Charles F. Smith, on the brief), for plaintiffs in error.

Guy A Ham, Sp. Asst. U.S. Atty., and Asa P. French, U.S. Atty.

Before COLT and PUTNAM, Circuit Judges, and ALDRICH, District Judge.

PUTNAM Circuit Judge.

Several persons, including Jacob Kerrch, the bankrupt, were indicted in the Circuit Court for conspiring to conceal from his trustee in bankruptcy sundry of his assets. The citation is defective in naming only Kerrch; whoever else joined in applying for the writ of error being covered by the expression 'et al., defendants.' This is irregular as the citation is the most important paper with reference to taking out a writ of error or appeal. Referring, however, to the petition for the writ of error, it gives the names of all the persons who were sentenced.

The plaintiffs in error urge 25 errors, but we consider only such as were orally reassigned at bar.

There was no demurrer, but a motion to quash; and error was alleged in refusing the motion. It has been thoroughly stated and restated that error cannot lie to a refusal of a motion to quash an indictment on account of anything which may be raised by demurrer. Nevertheless, as has been again said and resaid, an appellate court may notice what errors might be assigned in arrest of judgment, so that we often notice errors appearing on the face of the record, brought to the attention of the court below by a motion to quash, if they are substantial. The only complaints against the indictment brought to our attention are that it fails to state what tribunal appointed the trustee named in it, or that the person appointed accepted the trusteeship, or gave bond, or ever qualified. The allegation is simply that the person named therein as trustee was 'duly appointed trustee.' These words, of course, cover in a popular sense everything necessary to complete the appointment.

It is true that, under some circumstances, and, indeed, under many circumstances, it is not sufficient to allege in a general way that a thing was 'duly' done; but the details must be stated to such an extent that the court can judge whether what was done was in law 'duly' done. This rule, however, would be too burdensome if applied to everything which is merely incidental, or which only leads up to the real substance of the offense. Therefore it is not ordinarily required, except as to what is really a vital element of the crime. Under the statute, the vital thing is that there was a trustee, although, as held by us in Alkon v. United States, 163 F. 810, it may be sufficient to allege only that a trustee was in contemplation.

It follows from this that it cannot be essential to allege any more than is alleged in the present case, so far as the appointment and qualification of the trustee are concerned. Many illustrations of this rule are to be found in Wharton's Precedents. One series closely analogous includes 632 and 633, relating to a conspiracy by prisoners to escape, where the only allegation is that they were 'lawfully' confined and 'lawfully' detained without any details by which the court could ascertain whether they were indeed thus lawfully confined or lawfully detained. An indefinite number of precedents, including the ordinary indictment for larceny, alleging property in the person from whom the goods were stolen, without any allegation how the property was acquired, might be referred to. Indeed, the practical rule applicable hereto is such a general one that we need not follow this any further.

It might also be said that, as to a mere motion to quash, deficiencies of this class would be so far matters of form that at common law they would probably be held to be cured by a verdict. Hardesty v. United States (C.C.A.) 168 F. 25, 27, and cases there cited. But, independently of the manner in which the question was raised, we think, as we have said, that the general rule applies here which applies generally to allegations leading up to the essential elements of the crime charged; so that, according to the common practice in those respects, the indictment stands.

Next the plaintiffs in error urge that the trial court erred in admitting the books of account of the bankrupt, offered by the United States, because they had been obtained from the bankrupt by means of an involuntary judicial proceeding in bankruptcy. The record sufficiently shows that the trial court understood that reliance was placed...