Schonfeld v. United States

Decision Date14 December 1921
Docket Number56.
PartiesSCHONFELD v. UNITED STATES. [1]
CourtU.S. Court of Appeals — Second Circuit

Elijah N. Zoline, of New York City, for plaintiff in error.

William Hayward, U.S. Atty., of New York City (John E. Joyce, Asst U.S. Atty., of New York City, of counsel), for the United States.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

MANTON Circuit Judge.

The plaintiff in error was indicted by the grand jury on two counts. The first count charged that during the year 1920 including the 9th of July, 1920, the plaintiff in error was engaged in the jewelry business in New York City, and that on the 9th of June, 1920, a petition in bankruptcy was filed against him in the District Court for the Southern District of New York, and he was adjudicated a bankrupt. It alleges that, while a bankrupt, he unlawfully and fraudulently concealed from his trustee in bankruptcy, $100,000 worth of diamonds; that the plaintiff in error had a large number of creditors, who proved claims against him; that there were not sufficient assets or property belonging to the bankrupt to pay all the claims of his creditors in full.

The second count alleges that the plaintiff in error committed perjury in violation of section 125 of the federal Criminal Code (Comp. St. Sec. 10295), in that he took an oath before a referee in bankruptcy and testified falsely that on June 5 1920, two men, at his place of business in New York City, forcibly took from his possession a wallet containing the diamonds in question, whereas, in truth and fact, no such robbery took place, and it is alleged that the plaintiff in error did not believe it to be true, when he testified, that on June 5, 1920, the two men forcibly took from his possession the wallet containing the diamonds in question.

The evidence offered by the government was sufficient to warrant the submission of the question to the jury as to whether or not such a robbery took place as stated by the plaintiff in error in his testimony; also the question of concealing. If it was true, as he stated, that he had jewelry worth $110,000, and it was false, as he stated, that he was robbed of this jewelry, his failure to turn it over to his trustee in bankruptcy was sufficient evidence to warrant the submission of the evidence to the jury of the question of his concealment of his assets. It likewise was testimony in proof of the charge of perjury. On the trial he did not testify, and no evidence was offered in his behalf.

The plan and photograph of the place of business was offered in evidence. The two strangers who, he says, entered, posed as customers, and negotiated with him in the inner office, and were before his open safe while he held his entire stock of diamonds within their sight. By examining the plan, it is disclosed that the alleged robbers, in making their escape, would have to pass from the inner to the outer office, and then through a door from the outer office leading into the hall of the building. When outcry was made by him, and this was made, according to the plaintiff in error's story, immediately upon the commission of the assault, one Wertheim rushed from his factory toward the office. The door leading from the factory opened into the outer office almost adjoining the main door, which opened from the hall. Wertheim, in doing this, would traverse a point which the robbers would necessarily pass in their flight. He says he saw no one. One Tammas was standing in the hall three or four minutes waiting for an elevator, and he saw no one pass. An adjoining tenant rushed from his office upon hearing the outcry, and was advised at once that a robbery had been committed. He descended through the stairway to the street and saw no one. This, together with the evidence of the physical conditions, as shown by the plans of the office, was the testimony which the government offered to disprove the plaintiff in error's claim of a robbery.

There are circumstances which, as given in the narrative of the plaintiff in error to the police officers, bear out the government's claim that the robbery was a pretended one, and never in point of fact occurred. Evidence was offered to show the condition of the plaintiff in error's business. This showed a poor financial condition and indicated a motive for pretending a robbery and thus aid in the concealment of the diamonds. The finding of the jury on these questions of fact is binding upon us, and unless there be error of law in the rulings of the court, the conviction must stand.

The first assignment of error is that the court below, in violation of section 7a, subd. 9, of the Bankruptcy Act (Comp. St. Sec. 9591), admitted in evidence the testimony of the plaintiff in error before the referee in bankruptcy, without limiting such testimony to the perjury count alone. But the plaintiff in error, without objection, went to trial on both the concealment and perjury charges. Section 7a, subd. 9, provides that no testimony given by a bankrupt upon his examination shall be offered in evidence against him in any criminal proceeding. The court was not requested to limit or restrict the evidence when offered, and the claim now presented, that this evidence should not have been admitted on the concealment charge, was never presented below. Undoubtedly, it was competent and admissible for the perjury charge. As to the concealment charge, the testimony would have no value to the government. It did not tend to prove that the plaintiff in error concealed his assets, and, quite the contrary, it tended to disprove concealment. That the testimony was false was the essence of the perjury charge, and it was properly admissible. It had no bearing beyond the perjury charge. While it was wholly incompetent as to the concealment count (Cameron v. United States, 231 U.S. 710, 34 Sup.Ct. 244, 58 L.Ed. 448), and was competent as to the perjury count of the indictment, it was not error to admit such testimony upon this trial of both counts of the indictment. Below it was necessary for counsel to direct the court's attention by an instruction to the limitation of such testimony in order to raise the question which is now presented by the plaintiff in error.

Error is assigned for the admission, without limitation to the perjury count, of the schedules in bankruptcy filed by the plaintiff in error. We find no error in this.

Error is assigned in admitting in evidence, and permitting the prosecuting attorney to read in the record, excerpts from the testimony given by the plaintiff in error before the referee in bankruptcy. It is said that as to this testimony there was no proof that the excerpts read from the manuscript...

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