Meyer v. United States

• Citation: 220 F. 822
• Decision Date: 08 February 1915
• Docket Number: 2704.
• Parties: MEYER v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

220 F. 822

MEYER v. UNITED STATES.

No. 2704.

United States Court of Appeals, Fifth Circuit.

February 8, 1915

Francis J. Inge, of Mobile, Ala., and John R. Hunter, of Alexandria La., for plaintiff in error.

Alexander D. Pitts, U.S. Atty., of Selma, Ala., and H. T. Pegues, Asst U.S. Atty., of Mobile, Ala., for the United States.

Before PARDEE and WALKER, Circuit Judges, and MAXEY, District Judge.

WALKER Circuit Judge.

The case went to the jury on the second only of the three counts of the indictment; the demurrer to the third count having been sustained, and a nolle prosequi having been entered as to the first count. The action of the court in overruling the demurrer to the second count is assigned as error. We are not of opinion that that count was subject to the demurrer interposed to it. The grounds of demurrer which have been principally insisted upon by the counsel for the plaintiff in error are the ones which suggest that the count fails to allege that the money mentioned therein was knowingly and fraudulently concealed by the defendant, while a bankrupt from his trustee, and that said count is indefinite and uncertain, in that it cannot be ascertained whether the defendant is prosecuted for concealing said money from the trustee or from the receiver. These objections are based upon the presence in the count of an averment that:

The defendant 'then and there knowingly, willfully, and fraudulently, and while he was a bankrupt as aforesaid concealed the aforesaid sum of money from his said receiver, which said sum of money belonged then and there to the bankruptcy estate of the said Morris M. Meyer.'

In this connection it is pointed out that the statute (section 29, subd. 'b' of the Bankruptcy Act) upon which the prosecution must rest does not make it a criminal offense for a bankrupt knowingly and fraudulently to conceal, while a bankrupt or after his discharge, from his receiver, property belonging to his estate in bankruptcy, and that that statute is directed against such a concealment from the bankrupt's trustee only. The count does not fail to charge such a concealment from the trustee. It commences and concludes with averments to this effect which substantially follow the language of the statute which created the offense. Following the first-mentioned of these averments is a narrative as to how the defendant acquired the money alleged to have been concealed, namely, by getting cashed a described check payable to himself, of the appointment of a receiver of the bankrupt estate, and of the defendant's concealment from such receiver of the money so obtained, the averment of such concealment being the one above quoted. Following this narrative, the count proceeds to allege the selection, appointment, and qualification of a trustee of the bankrupt estate, and concludes with the averment:

'That after the selection, appointment, and qualification of the said Vincent B. McAleer as said trustee, the said Morris M. Meyer did then and there continue to conceal, knowingly, fraudulently, willfully, and unlawfully, from his said trustee, the aforesaid money then and there belonging to his said estate in bankruptcy, and while he, the said Morris M. Meyer, was then and there such bankrupt.'

While the count shows that the concealment charged had its commencement while the receivership was in existence, we think that its opening and concluding averments make it sufficiently plain that it was the continuance of that concealment after the appointment and qualification of the trustee, and not what is alleged to have occurred before such appointment and qualification, which is made the basis of the criminal charge preferred, and that the allegation as to a concealment from the receiver could not well have been understood as a charge of a separate offense, or as descriptive of an essential ingredient of the conduct which was relied on to support a conviction. There is nothing in the record to indicate that it was so understood and treated in the trial court. As the count pointedly averred every fact necessary to be proved to constitute the offense denounced by the statute, its sufficiency was not impaired by the unnecessary averment as to a concealment from the receiver. Hall v. United States, 168 U.S. 632, 18 Sup.Ct. 237, 42 L.Ed. 607; In re Lane, 135 U.S. 443, 10 Sup.Ct. 760, 34 L.Ed. 219. In this connection the counsel for the plaintiff in error refer us to the decision in the case of Ex parte Bain, 121 U.S. 1, 7 Sup.Ct. 781, 30 L.Ed. 849. That decision does not support the proposition that a superfluous allegation in an indictment renders it subject to demurrer. What was dealt with in that case was an unauthorized action of a court in striking out part of an indictment.

One of the grounds assigned in the demurrer was the failure of the count to allege that any demand for said money was made on the defendant by the trustee, or the receiver, or any other person. The statute does not make a demand a prerequisite to the commission of the offense which it denounces. Nothing said in the opinion rendered in the case of Warren v. United States, 199 F. 753, 118 C.C.A. 191, 43 L.R.A. (N.S.) 278, can be given the effect of requiring an indictment for the statutory offense to allege anything which the statute does not make an ingredient of that offense. The count in question charged the commission of the offense in the language of the statute. This being true, it was not subject to the demurrer. United States v. Comstock (C.C.) 161...