Silverberg v. United States
| Decision Date | 06 April 1925 |
| Docket Number | No. 4336.,4336. |
| Citation | 4 F.2d 908 |
| Parties | SILVERBERG et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. F. Weeks and Chas. I. Francis, both of Wichita Falls, Tex., for plaintiffs in error.
Henry Zweifel, U. S. Atty., of Fort Worth, Tex.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
On March 25, 1924, an indictment was returned against the plaintiffs in error, hereafter called the defendants, and three others, in the Wichita Falls division of the Northern district of Texas. The indictment charged the defendant Silverberg with concealing assets from his trustee in bankruptcy, and charged the defendant Feigenbaum with aiding and abetting him. The other three defendants were also charged with aiding and abetting Silverberg. As to one of the other defendants, Newsome, the court instructed a verdict. The other two were acquitted by the jury.
It appears from the record that Silverberg was in business at Munday, Tex., which is within the Wichita Falls division. There is evidence tending to show that prior to bankruptcy certain merchandise, of about $5,000 in value, was removed from his store at Munday and transferred to the store of Feigenbaum at Stamford, Tex., which is in the Abilene division of the same court. Some of the goods were found there after bankruptcy. Silverberg was adjudicated a bankrupt in involuntary proceedings and a trustee was elected. Silverberg did not list any of the property in Feigenbaum's store on his schedules. He told his trustee nothing about any property in Stamford, but at one time did state to the attorney for the trustee that he had exchanged about $500 worth of goods with Feigenbaum.
The defendants question the jurisdiction of the court to try them, on the ground that the concealment took place, if at all, in the Abilene division, and not in the Wichita Falls division. The question is raised by a motion to direct a verdict and by numerous special charges requested of the court, but was not raised in limine, by demurrer or otherwise. Error is assigned to the overruling of the motion and to the refusal of the special charges.
The indictment plainly charges that the goods had been removed from Munday to Stamford before the adjudication, and there concealed until after the trustee was appointed, so the defendants were fully advised as to what they had to meet. They joined issue on pleas of not guilty, and did not raise the question of jurisdiction until after the close of the evidence.
The question presented is wholly technical, and merely that of venue, purely personal to the defendants. The crime was committed in the district, whether at Munday or Stamford, and the court had jurisdiction. Under the provisions of section 53, Judicial Code (Comp. St. 1035), the indictment could have been returned in any division of the district, and then transferred to the proper division for trial by order of court. Salinger v. Loisel, 265 U. S. 224, 44 S. Ct. 519, 68 L. Ed. 989. And under the provisions of said section 53 the case could have been transferred for trial to any division of the district at the request of defendants. It was too late to raise the question after the jury had been impaneled and the defendants had gone to trial on pleas of not guilty. Any rights the defendants had to be tried in a particular division of the district could have been and were waived.
A more serious question is raised by the twelfth assignment of error relative to certain questions asked the defendant Newsome when on the stand as a witness. In the course of his cross-examination, the assistant district attorney asked him the following question: "Since you have been indicted in this court on this count, have you had a complaint filed against you or been...
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