Reimer-Gross Co. v. United States

• Decision Date: 10 June 1927
• Docket Number: No. 4833.,4833.
• Citation: 20 F.2d 36
• Parties: REIMER-GROSS CO. et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

20 F.2d 36 (1927)

REIMER-GROSS CO. et al. v. UNITED STATES.

No. 4833.

Circuit Court of Appeals, Sixth Circuit.

June 10, 1927.

H. Frank Van Lill, of Cleveland, Ohio (Orgill, Maschke & Wickham, of Cleveland, Ohio, on the brief), for plaintiff in error.

D. C. Van Buren, Asst. U. S. Atty., of Cleveland, Ohio (A. E. Bernsteen, U. S. Atty., and M. E. Evans, Asst. U. S. Atty., both of Cleveland, Ohio, on the brief), for the United States.

Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.

MOORMAN, Circuit Judge.

Plaintiff in error was the sole owner of the Reimer-Gross Company, which was adjudged a bankrupt August 4, 1925. He was charged in the court below with concealing property of the bankrupt from its trustee. The property alleged to have been concealed, as stated in the indictment, consisted of "certain goods, wares, merchandise, money credits, and other things of value in the amount of $10,000 or more, a further and more particular description thereof being to the grand jurors unknown."

Upon the trial the government relied in the main for its proofs upon a financial statement made by Gross showing assets in the hands of the Reimer-Gross Company of the value of $31,647.76 on September 8, 1924, upon an inventory of the merchandise turned over to the trustee of the cost value of $25,984.50, and upon the books of the bankrupt, from which it appeared that it purchased, between September 8, 1924, and the date of bankruptcy, goods amounting to $84,816.33, and sold during that period goods of the value of $48,870.49, leaving unaccounted for something over $40,000. There was also evidence to the effect that within the year preceding the adjudication Gross had delivered goods, sometimes as often as two or three times a day, to a place in Cleveland where bankruptcy sales were conducted. Upon this evidence the defendant was convicted. He prosecutes error, contending that the indictment was insufficient, and that the evidence did not warrant a conviction.

The argument against the indictment is that it failed to set forth the facts distinctly enough to advise the accused with reasonable certainty of the charge and to enable him to plead a judgment thereon in bar of another prosecution for the same offense. This rule in its latter aspect is admittedly not so strict as wholly to exclude the right of resort to parol testimony to assist in identifying the former offense. Bartell v. United States, 227 U. S. 427, 33 S. Ct. 383, 57 L. Ed. 583. Accepting this as the test, the question is whether the allegation that defendant concealed "certain goods, wares, merchandise, money credits, and other things of value in the amount of $10,000 or more, a further and more particular description thereof being to the grand jurors unknown," was sufficient.

The fact that the government relied in its proofs upon a shrinkage in assets during the year preceding the bankruptcy bears upon the question we are considering only so far as it indicates that the lower court thought the indictment broad enough to include all kinds of property of whatever value in the general classes mentioned. This lack of identity or definiteness is the thing of which defendant complains. There is no theory, so far as we are advised, upon which the government ought to have been permitted to prove the concealment of property other than that or in excess of that alleged in the indictment. That no specific property of the value of $10,000 could be separated from what the government claimed was a total concealment of assets worth $40,000, and that it did not attempt to and could not identify any of the property, only serve to illustrate the generality of the averment. Every term used — i. e., goods, wares, merchandise, money credits, and other things of value — is general. The first three would include everything kept in a store or subject to any kind of mercantile trade. "Money credits" is even more indefinite and general, and "other things of value" is so indescribably broad as to be practically all-embracing. None of them signifies anything specific, or is susceptible of a limited class identification.

Section 29b of the Bankruptcy Act (Comp. St. § 9613) denounces as an offense the concealment by a bankrupt, from his trustee, "of the property belonging to his estate in bankruptcy." If the word "property" were substituted for the words "goods, wares, merchandise, money credits, and other things of value," the indictment would be hardly more general or less informative than as drawn. It would not, we dare say, be contended that such an indictment in the language of the statute was good. In Ledbetter v. United States, 170 U. S. 606, 18 S. Ct. 774, 42 L. Ed. 1162, the statute defined "the offense with the requisite precision"; and in United States v. Hess, 124 U. S. 483, 8 S. Ct. 571, 31 L. Ed. 516, it was said, "Undoubtedly the language of the statute may be used in the general description of an offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged." The latter opinion was cited in Armour Packing Co. v. United States, 209 U. S. 56, 28 S. Ct. 428, 52 L. Ed. 681, where it was again stated that the "charge must be sufficiently definite to enable him the accused to make his defense and avail himself of the record of conviction or acquittal for his protection against further prosecutions. * * * And it is true it is not always sufficient to charge statutory offenses in the language of the statutes, and, where the offense includes generic terms, it is not sufficient that the indictment charge the offense in the same generic terms, but it must state the particulars." Other cases bearing on the subject are United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; United States v. Simmons, 96 U. S. 360, 24 L. Ed. 819; United States v. Carll, 105 U. S. 611, 26 L. Ed. 1135; Rosen v. United States, 161 U. S. 29, 16 S. Ct. 434, 480, 40 L. Ed. 606.

An indictment may be indefinite in two respects, as pointed out in Leonard v. United States, 18 F.(2d) 208, in the character of the acts charged, and the identifying circumstances. The indictment in that case charged the sale of "intoxicating liquor," a term defined in the statute, and we sustained the indictment, having in mind the provision in the act for a bill of particulars, by which there was evidenced an intent, so far as permitted by the Fifth and Sixth Amendments, to provide for simple and brief indictments under that act. A certain amount of particularity, no doubt, is required by the Constitution — just what has never been authoritatively determined — and yet there is a considerable additional particularity required by the body of law and decisions that has grown up. This additionally established requirement Congress could modify as to any selected class of prosecutions, and the rather extreme degree of uncertainty approved by the Leonard Case does not go beyond what we thought was the congressional intent as to indictments under that act. Neither this nor any other case goes so far as to validate an indictment that is lacking in the fundamentals of criminal pleading, and of course it has never been thought that a bill of particulars can make valid an indictment that is otherwise bad.

Most of the cases upon which the government relies deal, as an examination will show, more with the quantum of evidence than with the sufficiency of averment. It does not appear in Arine v. United States (C. C. A.) 10 F.(2d) 778, and Frieden v. United States (C. C. A.) 5 F.(2d) 556, what the averments of the indictments were; the cases being decided on the evidence. In each of them the proof was decidedly more definite, both as to character of acts and identifying circumstances, than in the case at bar. That, we think, however, is immaterial here, as we likewise think those cases are to be given little weight, because wholly lacking in any considered conclusion touching the precise question under consideration. While there are general statements in Rudner v. United States (6 C. C. A.) 281 F. 516, ...