Morrow v. United States

• Decision Date: 10 February 1926
• Docket Number: No. 7005.,7005.
• Citation: 11 F.2d 256
• Parties: MORROW et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

11 F.2d 256 (1926)

MORROW et al. v. UNITED STATES.

No. 7005.

Circuit Court of Appeals, Eighth Circuit.

February 10, 1926.

Arthur L. Oliver, of St. Louis, Mo., and James A. Finch, of New Madrid, Mo. (Robert Smith and Orville Zimmerman, both of Kennett, Mo., on the brief), for plaintiffs in error.

Allen Curry, U. S. Atty., of St. Louis, Mo.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and YOUMANS, District Judge.

KENYON, Circuit Judge.

At the April, 1923, term of the District Court of the United States for the Southeastern Division of the Eastern Judicial District of Missouri, an indictment was returned by the grand jury, charging D. C. Morrow and Chester Gregson, plaintiffs in error, and J. R. Morrow, J. J. Smith, W. A. Morrow, and John Morrow, with having willfully, knowingly, unlawfully, and feloniously conspired to commit an offense against the United States, viz. the violation of section 29b of the National Bankruptcy Act of July 1, 1898 (Comp. St. § 9613), in that, in anticipation of the voluntary bankruptcy of plaintiff in error D. C. Morrow, they concealed from the trustee in bankruptcy of the said D. C. Morrow certain property belonging to the estate in bankruptcy, consisting of farm implements and other articles of goods, wares, and merchandise of great value, and that in pursuance of said conspiracy, and to effect the object thereof, large quantities of property and merchandise belonging to said D. C. Morrow, consisting of farm implements, flour, harness, sugar, notes, money, etc., were by them removed and caused to be carried away from the place of business of the said D. C. Morrow in the city of Campbell, and secreted in various places, for the purpose of concealing and hiding said property from the creditors of the said D. C. Morrow, and from the trustee in bankruptcy of the said D. C. Morrow thereafter to be appointed, and with the intent and purpose of preventing said merchandise from coming to the knowledge and possession of said trustee, all to defraud the creditors of the said D. C. Morrow.

A joint demurrer to the indictment and a motion for bill of particulars were filed by defendants on March 3, 1924. On motion of the United States district attorney the court on April 15, 1924, ordered that the same be stricken from the files, because untimely and imprudently filed, and also overruled the motion for a bill of particulars. Prior to the trial the cause was dismissed as to defendants J. J. Smith and John Morrow.

At the close of all the testimony, defendants J. R. Morrow, W. A. Morrow, D. C. Morrow, and Chester Gregson filed motions for an instructed verdict of acquittal, which were overruled as to D. C. Morrow and Chester Gregson. The court, before instructing the jury, stated that there was nothing sufficient in law to hold W. A. Morrow and J. R. Morrow, and that at the proper time he would direct the jury to find them not guilty. October 16, 1924, the jury returned a verdict of guilty as to defendants D. C. Morrow and Chester Gregson, and by direction of the court returned a verdict of not guilty as to defendants J. R. Morrow and W. A. Morrow.

Motions for new trial and in arrest of judgment were overruled, and on the 17th of October, 1924, defendant D. C. Morrow was sentenced to a term of 18 months in the United States penitentiary at Leavenworth and fined $300. The defendant Chester Gregson was fined $200. These defendants bring the case here on writ of error, and assign a number of errors for our consideration.

Plaintiffs in error D. C. Morrow and Chester Gregson (hereafter for convenience designated as defendants) stand convicted of the charge of having conspired under section 37, Penal Code of the United States, to commit an offense against the United States, viz. the violation of section 29b of the National Bankruptcy Act of 1898. All others of the original defendants have been freed of the charge. Said section 37 is as follows: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both." (Comp. Stat. § 10201).

Section 29b of the National Bankruptcy Act, so far as it pertains to this matter, is as follows: "A person shall be punished, by imprisonment for a period not to exceed two years, upon conviction of the offense of having knowingly and fraudulently concealed while a bankrupt, or after his discharge, from his trustee any of the property belonging to his estate in bankruptcy."

We take up the various points urged by plaintiffs in error.

First. That there was no substantial evidence to warrant submitting to the jury the question of their guilt or innocence. The evidence, as in nearly all cases of conspiracy, was circumstantial, and in view of another trial we deem it unwise to enter into any discussion thereof. However, we are satisfied on the record presented that the court did not err in refusing to sustain motions on the part of defendants to instruct verdicts of acquittal.

Second. The claim that the court abused its discretion in striking the joint demurrer of defendants from the files is not well taken. The indictment was returned and filed on April 11, 1923. The demurrer was filed March 3, 1924, more than 10 months after the indictment was returned, and after a term of court had been held subsequent to the filing of the indictment. This matter was within the sound judicial discretion of the court, and there was no abuse thereof. Hillman v. United States, 192 F. 264, 112 C. C. A. 522; Durland v. United States, 16 S. Ct. 508, 161 U. S. 306, 40 L. Ed. 709; Holt v. United States, 31 S. Ct. 2, 218 U. S. 245, 54 L. Ed. 1021, 20 Ann. Cas. 1138.

Subsequent developments in the case indicate it might have been wise, in view of the general nature of some of the charges, to have granted the motion for bill of particulars. Such matter, however, was within the discretion of the trial court, and we are of opinion that the refusal to grant the motion cannot be held to be such abuse of discretion as to require a reversal. Talmadge et al. v. United States (C. C. A.) 4 F. (2d) 378; United States v. Pierce et al. (D. C.) 245 F. 888; Rosen v. United States, 16 S. Ct. 434, 480, 161 U. S. 29, 40 L. Ed. 606.

Third. It is urged that a certain part of the court's charge to the jury touching upon the involuntary and voluntary petitions in bankruptcy filed against and by the defendant D. C. Morrow were erroneous. We are satisfied the court was entirely right in charging the jury that it was immaterial whether the bankruptcy was voluntary or involuntary. At the close of the court's instructions counsel for defendant, when invited by the court to call its attention to anything that had been omitted, said: "To the eminently fair charge of the court I have no objection, other than to save my exceptions to requests 6 and 7, and also the court's charge with reference to the consideration of the voluntary petition in bankruptcy." Exceptions here seem to be preserved to the failure to give certain instructions asked by defendants in the trial court, but the instructions requested do not appear in the record. Hence there is nothing in relation thereto before us.

Fourth. Certain objections are urged to evidence of the government's witness, Pearson, but we think such objections are not substantial, and, were there any error, it was without prejudice to defendants' rights.

Fifth. The third and fourth specifications of error cover assignments of error 9 and 10, and challenge our very thoughtful attention. They relate to certain of the evidence of John Ponder, cashier of the State Bank at Campbell, Mo., and F. P. Bess, cashier of the Holcomb Liberty Bank at Holcomb, Mo. It was shown by these witnesses, over the objection of defendant Gregson, that D. C. Morrow, his codefendant, became indebted to the State Bank of Campbell, Mo., in 1918 or 1919, and that this indebtedness amounted on December 20, 1920 to $9,989.60, for which a note was taken. The bank had some security from Morrow in the nature of a mortgage on his cotton gin. On August 10, 1921 Morrow, who was the owner of 100 shares of stock in the Holcomb Liberty Bank, surrendered the same to the bank and had new stock in like amount reissued in the name of his mother, Mrs. N. M. Morrow, which he gave to the State Bank of Campbell as additional security. There was no assignment of the stock, and it was surrendered to defendant Morrow by the bank some months previous to March 1, 1924. The indebtedness represented by the note "was cleaned up March 1, 1924." It must be noted that the transaction of issuing the Holcomb Liberty Bank stock to Mrs. N. M. Morrow occurred about five months before bankruptcy, and nearly three months prior to the time fixed in the indictment as the commencement of the conspiracy.

The instrument charges the conspiracy as covering the period from November 21, 1921 to the date of returning the indictment, and charges the overt acts as taking place in November and December, 1921, and January and February, 1922. The court, in overruling the objections to this evidence, stated: "Overruled so far as it concerns D. C. Morrow." With reference to this matter the...