Pallett v. United States, 15479.

• Citation: 228 F.2d 671
• Decision Date: 17 January 1956
• Docket Number: No. 15479.,15479.
• Parties: James Lester PALLETT, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

228 F.2d 671 (1956)

James Lester PALLETT, Appellant, v. UNITED STATES of America, Appellee.

No. 15479.

United States Court of Appeals Fifth Circuit.

January 17, 1956.

Joe H. Jones, Lester L. May, Dallas, Tex., for appellant.

William O. Braecklein, Asst. U. S. Atty., Dallas, Tex., Heard L. Floore, U. S. Atty., Fort Worth, Tex., for appellee.

Before BORAH and JONES, Circuit Judges, and DAWKINS, District Judge.

DAWKINS, District Judge.

Appellant and his wife were indicted in four counts for concealing assets from their receiver and trustee in bankruptcy, in violation of 18 U.S.C. § 152. Three counts were dismissed by the government, leaving only Count II relating to a 1953 Chrysler automobile.¹ Defendants waived the jury, and the judge acquitted the wife but found appellant guilty. Appellant here urges that the judge erred in refusing to grant his motion to dismiss the indictment and his motion for acquittal, both timely and properly presented.

This motion to dismiss complained that the indictment constituted only a legal conclusion and therefore did not properly charge an offense. The argument here is that the use of the words "concealed and withheld" and "belonging" without allegations of fact upon which they can be based renders the indictment fatally defective. In this connection it is urged that the government was required to allege the facts or circumstances which it contended constituted appellant's ownership of the vehicle, as well as facts showing that ownership on the date the petition in bankruptcy was filed.

We cannot agree. While it is awkwardly constructed, the indictment clearly charges that appellant was adjudged bankrupt on July 2, 1953; that on or about July 20, 1953, and continuously thereafter Melvin Yonack was the duly appointed receiver and trustee; that on or about that date, and continuously thereafter, appellant "did knowingly, fraudulently and wilfully conceal and withhold" from that officer a certain described automobile, that during this period that automobile was property "belonging" to the bankrupt's estate.

There can be no doubt as to the meaning of the words "conceal" and "belonging", and in the sense that they are used in the statute and the indictment, they do not describe legal concepts but state circumstances of fact. The indictment is written substantially in the words of the statute and clearly expresses the charge that appellant owned a vehicle which he knowingly and fraudulently hid and kept from the officer empowered and directed by law to collect and administer assets of a bankrupt. It set forth all the elements of the offense necessary reasonably to inform appellant of the nature of the charge and, we think, meets the requirements of the Sixth Amendment under Rule 7(c) of Criminal Procedure, 18 U.S.C. United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92; Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L. Ed. 861; United States v. Walker, 5 Cir., 216 F.2d 683; Wilson v. United States, 5 Cir., 158 F.2d 659. The cases relied upon by appellant² were, with one exception, decided long prior to the promulgation of the Rules of Criminal Procedure when the requirements for pleading were much more technical. The Alabama Packing Company case involved an alleged violation of the War Powers Act, 50 U.S.C.A.Appendix, § 633, which proscribed conduct not criminal except under special and peculiar circumstances. See 167 F.2d 181.

In asserting his motion for acquittal here, appellant urges that the uncontradicted evidence shows that the certificate of title to the automobile had been issued to and was in the name of Eugene E. Smith at all material times, and that appellant failed to list and surrender the automobile upon the advice of his attorney that it did not belong to him under Texas law. These facts, he urges, unquestionably show that (1) he was not the owner of the automobile and was therefore not obliged to surrender it, or (2) even if he were its owner, he lacked the necessary criminal intent to commit the offense.

The government's evidence was that appellant acquired the 1953 Chrysler prior to bankruptcy from its owner by paying $1,500 in cash and trading in his own 1952 Chrysler; that at appellant's request the new certificate of title was put in the name of Smith; that after bankruptcy appellant sold the automobile to a soldier for $1,750 cash, paid directly to appellant by the soldier who thought appellant was the owner; that Smith did not authorize the use of his name for titling...