Kolbrenner v. United States

• Decision Date: 05 March 1926
• Docket Number: No. 4487.,4487.
• Citation: 11 F.2d 754
• Parties: KOLBRENNER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

11 F.2d 754 (1926)

KOLBRENNER et al. v. UNITED STATES.

No. 4487.

Circuit Court of Appeals, Fifth Circuit.

February 4, 1926.

Rehearing Denied March 5, 1926.

Harry Tom King and E. M. Overshiner, both of Abilene, Tex. (Kirby, King & Overshiner, of Abilene, Tex., on the brief), for plaintiffs in error.

Henry Zweifel, U. S. Atty., and Jesse E. Martin, Asst. U. S. Atty., both of Fort Worth, Tex.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

FOSTER, Circuit Judge.

Plaintiffs in error, Art Kolbrenner, Jack Kolbrenner, and Menard Kolbrenner, hereafter called defendants, were the sole stockholders and officers of Kolbrenner Bros., Inc., which corporation was engaged in the retail shoe business, with stores at Cisco, Eastland, and Abilene, Tex. On December 6, 1921, a voluntary petition in bankruptcy was filed by the corporation, it was adjudicated bankrupt, and in due course a trustee was appointed. An indictment was returned on October 9, 1924, charging defendants with conspiring together, and with the bankrupt, to conceal certain assets of the corporation, and on this they were convicted and sentenced.

Some 50-odd errors are assigned, but, as is usual with such a multiplicity of assignments, only a few of them need be considered. A pleading, termed a demurrer and motion to quash, was filed to the indictment and overruled. Twenty-three assignments run to this, most of them wholly frivolous.

The indictment is inartificially drawn and somewhat diffuse, but, stripped of surplusage, it clearly charges a conspiracy between defendants and the bankrupt, beginning on July 1, 1921, and continuing until October 9, 1924, the date of filing the indictment, to conceal certain described diamonds, valued at $7,500, a part of a stock of shoes, and a large sum of money, from the trustee. As overt acts to effect the object of the conspiracy, the indictment alleges: (1) That on August 1, 1921, Art Kolbrenner took the said diamonds to Fort Worth and pawned them with one Gilbert; (2) that on October 1, 1921, Art Kolbrenner gave one Bodkey $1,500 with which to redeem the diamonds; (3) that on October 7, 1921, Art Kolbrenner went to Fort Worth and received the diamonds from Bodkey; (4) that on November 1, 1921, the three defendants (naming them) sold large amounts of stock and shoes at greatly reduced prices, and converted the proceeds to their own use and benefit; (5) that on September 15, 1921, and at various times between that date and December 5, 1921, Jack Kolbrenner instructed one Hoffman, a clerk, to convert all checks received into cash and turn the money over to defendants (naming them); (6) that on September 15, 1921, defendants received large amounts from said Hoffman; (7) that on December 6, 1921, Jack Kolbrenner filed the petition in bankruptcy; (8) that on December 6, 1921, Jack Kolbrenner prepared and filed schedules on which were not listed the said diamonds and money previously concealed; (9) that on December 20, 1921, Art Kolbrenner testified at the first meeting of creditors that he had pawned the diamonds to Gilbert, and had subsequently sold the pawn ticket to one Dunman, who had redeemed them.

No attack is made on the form of the indictment. It is contended, however, that it is necessary to allege overt acts occurring after bankruptcy and within three years of the filing of the indictment, and that for various reasons the eighth and ninth overt acts alleged could not be considered acts in furtherance of the conspiracy.

It will be noted that the fourth overt act is alleged to have been done within three years of the filing of the indictment, and it is apparent it would be effective in furtherance of the conspiracy. For the purpose of considering the demurrer and motion to quash, the others may be disregarded. Conceding that, in charging a continuing conspiracy to conceal assets from a trustee in bankruptcy, begun more than three years before the returning of the indictment, it is necessary to allege an overt act within the period of limitation, it does not follow that acts occurring after bankruptcy must be pleaded and proved. It is well settled that if a conspiracy is once formed, and any act, whether itself a crime or not, is done in furtherance of it, the conspirators may be punished, although the object of the conspiracy is not accomplished. U. S. v. Rabinowich, 35 S. Ct. 682, 238 U. S. 78, 59 L. Ed. 1211. The demurrer and motion to quash was properly overruled.

At the first meeting of creditors, in December, 1921, Art. Kolbrenner, one of the defendants and secretary and treasurer of the corporation, was called as a witness and testified, in substance, referring to the diamonds alleged to have been concealed, that they had been pawned to one Gilbert, of Fort Worth, for $1,500, and the ticket was subsequently sold to one Dunman, of Ranger, for $200; that Dunman had redeemed the diamonds from Gilbert, and then had them; that they did not belong to Kolbrenner Bros., and all they got for them was $1,700.

The government was permitted to prove the giving of this testimony over the objection of the defendants. After the close of...