Miller v. United States

• Decision Date: 01 November 1921
• Docket Number: 1899.
• Citation: 277 F. 721
• Parties: MILLER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

277 F. 721

MILLER v. UNITED STATES.

No. 1899.

Circuit Court, of appeals, Fourth Circuit.

November 1, 1921

[Copyrighted Material Omitted]

The witness John T. Roddey testified that he had had some occasion to examine handwritings; that he had not had a great deal of experience, and had not given much attention to the matter, and had had no experience of examining handwritings except for his own satisfaction; that for his own satisfaction he had studied books on the subject, and read two or three articles; that he looked into the subject enough to enable him to identify different handwritings; that he did not consider himself an expert, but might be called an expert, but not of the first class; that he could identify handwritings as well as the ordinary man, and probably a little better; and that sometimes, when he happened to be around the bank he would be called on to make comparisons of different handwritings.

Defendant requested an instruction that the undisputed evidence showed that the trustee in bankruptcy had knowledge of the funds charged to have been concealed before his appointment and subsequent thereto, and that no discharge had been granted the bankrupt, and that under such fact the indictment must fall and the verdict be not guilty.

John Gary Evans, of Spartanburg, S.C., and P. anburg, S.C., and P A. Bonham, of Greenville,S.C. (C. C. Wyche, of Spartanburg, S.C., on the brief), for plaintiff in error.

J. William Thurmond, U.S. Atty., of Edgefield, S.C. (J. E. Marshall, Asst. U.S. atty., of Greenville, S.C., on the brief), for the United States.

Before KNAPP and WOODS, Circuit Judges, and BOYD, District Judge.

WOODS Circuit Judge.

The first count of the indictment, found October 16, 1920, charges M. L. Hayes and A. H. Miller with conspiracy knowingly and fraudulently to conceal from the trustee of the bankrupt, Hayes, $2,500 in money, the property of Hayes. The specific overt acts charged were the concealment by Hayes, the delivery of the money by Hayes, and its reception by Miller with the fraudulent intention of both to convert it to their own use, and the giving of false testimony by Miller before the referee in bankruptcy with respect to the transaction. The second count charges the bankrupt, Hayes, with fraudulent concealment of the money from the trustee, and Miller with aiding, abetting, and counseling him in the commission of the crime.

Miller was tried separately and convicted on both counts. Error is assigned in the refusal to direct a verdict of acquittal, in the admission of testimony, in the instructions to the jury, and in refusal to arrest the judgment. Hayes was used as a witness by the government, and Miller testified on his own behalf. On vital points their testimony was in direct conflict.

Miller was the attorney who made out and filed Hayes' petition in bankruptcy on September 2, 1919. As to the source of the fund, Hayes testified that before the bankruptcy he borrowed about $6,000 from one Cudd on his bond and mortgage, and deposited the money in the First National Bank of Gaffney. He agreed in writing with Cudd that the money should be used in building a house, and the account was kept in the name of 'M. L. Hayes, Trustee.' No written agreement with Cudd was introduced, and there is nothing to show that Cudd retained any control of the fund, or that Hayes had agreed to hold it as trustee for Cudd. Assuming that Hayes had made a valid promise to expend the money in the building of a house on the mortgaged land the house, if built, would have been his property, subject to the mortgage. It was obvious, when bankruptcy intervened, that the money was the property of Hayes, and that Cudd would have no claim to it, in law or equity, until he had exhausted the land covered by his mortgage. The duty of Hayes to include it in his schedule and turn it over to the trustee in bankruptcy was therefore perfectly clear to the most ordinary understanding. The testimony of Hayes is undisputed that there was no special reason for depositing the money as trustee, that he considered the money his, and that he used it as he pleased. The proof was that Cudd has never made any claim to the money.

Hayes gives this account of the dealings of himself and Miller:

'I employed Mr. A. H. Miller as my attorney when I went into bankruptcy. I talked the matter over on Sunday before I filed the petition in bankruptcy. At that time I had less than $3,000 in the First National Bank. I did not make return of this money in my schedule. Mr. Miller asked me what money I had. I told him what I had, and how I came in possession of it, and he said it would not be necessary to give that in my schedule. At that time my wife was sick in the hospital, and I needed some money to pay her bills and expenses, and that is why I did not give it in. I was advised by Mr. Miller not to. He advised me to give him the money, and I did. I turned over to him $2,500. I gave it to him by check. Mr. Miller assisted me to go into bankruptcy. He was to take the money, and give it to me along as I needed it to pay expenses and my wife's hospital bills. I asked him what he would charge me, and he said, 'Well, I will make that satisfactory with you.' I suppose that was to come out of the $2,500.'

Hayes further testified that Miller had paid him for his own use about $700 of the fund, still holding about $1,800, which he had refused to pay over. Miller met this testimony by his statement that he had cashed the check for $2,500 for Hayes and paid him the money, before he knew of his insolvency or contemplated bankruptcy; that he did not put the money in the schedule, because Hayes told him it...