Schonfeld v. United States, 56.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Citation: 277 F. 934
• Docket Number: 56.
• Parties: SCHONFELD v. UNITED STATES. [1]
• Decision Date: 14 December 1921

277 F. 934

SCHONFELD
v.
UNITED STATES. ^[1]

No. 56.

United States Court of Appeals, Second Circuit.

December 14, 1921

[277 F. 935]

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 [277 F. 936] 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 [277 F. 937] 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...