Simon v. United States

• Decision Date: 22 December 1941
• Docket Number: No. 4828.,4828.
• Citation: 123 F.2d 80
• Parties: SIMON v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

123 F.2d 80 (1941)

SIMON v. UNITED STATES.

No. 4828.

Circuit Court of Appeals, Fourth Circuit.

October 10, 1941.

Writ of Certiorari Denied December 22, 1941.

COPYRIGHT MATERIAL OMITTED

Randolph Bias, of Williamson, W. Va. (Bias & Bias, of Williamson, W. Va., and Oscar Tabory, of Logan, W. Va., on the brief), for appellant.

Charles M. Love, Jr., Asst. U. S. Atty. of Charleston, W. Va., and Raoul Berger, Sp. Asst. to Atty. Gen. (Lemuel R. Via, U. S. Atty., of Huntington, W. Va., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

Writ of Certiorari Denied December 22, 1941. See ___ U.S. ___, 62 S.Ct. 412, 86 L.Ed. ___

DOBIE, Circuit Judge.

This case involves an appeal from a conviction and sentence by the District Court of the United States for the Southern District of West Virginia. The appellant, Doctor S. M. E. Simon (hereinafter called the appellant), was indicted at the October, 1940, term of court, for concealment of assets and false swearing, in connection with a bankruptcy proceeding, in violation of U.S.C.A. Title 11, Section 52, Subsection b(1) and (2). The Statute in question reads as follows: "A person shall be punished by imprisonment * * * upon conviction of the offense of having knowingly and fraudulently (1) concealed from the * * * trustee * * * in any proceeding under this title, any property belonging to the estate of a bankrupt; or (2) made a false oath or account in or in relation to any proceeding under this title * * *."

The indictment was framed in seven counts. Counts 1, 2, and 4 charge that the defendant concealed from his trustee in bankruptcy various accounts receivable, two of which had been reduced to judgment, amounting in all to approximately $377; Count 3 charges concealment of a judgment and certain collections made thereunder, after bankruptcy; Count 5 charges concealment of three parcels of realty referred to as (1) Pikeville property; (2) Dahman property, upon which an apartment house was erected prior to the bankruptcy, and (3) Mercy Hospital. The realty was valued at approximately $65,000. Counts 6 and 7 charge false swearing with respect to the property covered by Counts 1 and 2.

After an extended trial, the jury returned a verdict of guilty on all seven counts. The appellant had moved for a directed verdict of not guilty on each of the seven counts and this motion had been overruled. The court sentenced the defendant to three years in a federal penitentiary on each count, these sentences to run concurrently, and imposed a fine of $1,000 each on Counts 1, 2, and 5.

The defendant makes three contentions which form the basis for this appeal: (1) that owing to the hostile conduct of the trial judge, he did not receive a fair and impartial trial as guaranteed by the Sixth Amendment; (2) there was no substantial evidence to support the conviction; (3) that incompetent evidence involving the commission of other crimes was erroneously admitted. We shall now discuss these contentions in their respective order.

Appellant's first contention is that he "has not had the fair and impartial trial guaranteed him by the Sixth Amendment" to the Federal Constitution. This contention is based on the conduct of Judge Harry E. Watkins, who presided over the trial of appellant.

It would serve no useful purpose, and would unduly prolong this opinion, were we to set out at length, and to discuss in detail, the unwarranted nature of these allegations. But since these contentions are seriously made, and since the liberty of a human being is at stake, these contentions have all been carefully examined in the light of the record. We are, after such an examination, firmly convinced that they have no real basis in either law or fact and that appellant had a fair trial, with every safeguard to which he was entitled. The trial was long and trying on all those concerned. The evidence was complicated, there were numerous witnesses and a mass of documents figured conspicuously; while almost every point, on which any contest was possible, was bitterly fought by zealous counsel for appellant. Under these circumstances, we think Judge Watkins displayed a commendable patience. And, in the conduct of Judge Watkins, we find no ground for a reversal of the judgment in the instant case. We advert briefly to some instances which are stressed by counsel for appellant.

When counsel for appellant informed the court that the government consumed too much time in placing certified copies of certain deeds in the record, Judge Watkins replied: "I think it has been done in a proper manner." This, we are told, is a reprimand of appellant's counsel, with an intimation that it might have been done for the purpose of influencing the jury. (Appellant's brief, p. 14.)

On the fifth day of the trial, at appellant's request for a recess of thirty minutes for a conference with witnesses, the judge granted a recess of fourteen minutes (Appellant's brief, p. 14). During the sixth day of the trial, the judge said: "Gentlemen, as indicated before, I want you all not to overlook anything, but at the same time let us endeavor to hurry along as much as possible. I indicated yesterday we were going to try to finish today. If we don't, we just can't, but we are going to do the best we can."

We certainly cannot read into this conduct of Judge Watkins any attempt on his part to prejudice the jury against the appellant. When Judge Watkins required certain documents to be read to the jury, instead of having these documents turned over to the jury, we think he acted quite properly. Yet appellant would have us believe by his comment: "The purpose is plain." (Appellant's brief, p. 16) that this was a deliberate attempt on the part of the trial judge to prejudice appellant improperly in the eyes of the jury.

Appellant's counsel vigorously insists that the judge, in many suggested instances, treated the government witnesses with the utmost courtesy and consideration, but by harsh and forbidding demeanor sought to discredit appellant's witnesses and reflect seriously upon their credibility. We find no reasonable basis for this contention. Counsel for appellant was altogether too ready to attribute unworthy motives to the trial judge merely because the rulings of the judge were adverse to the contentions of appellant's counsel.

Appellant's counsel strenuously complains that the trial judge questioned the witnesses from time to time in an effort to bring out the facts of the case. This is precisely what he should have done. It cannot be too often repeated, or too strongly emphasized, that the function of a federal trial judge is not that of an umpire or of a moderator at a town meeting. He sits to see that justice is done in the cases heard before him; and it is his duty to see that a case on trial is presented in such way as to be understood by the jury, as well as by himself. He should not hesitate to ask questions for the purpose of developing the facts; and it is no ground of complaint that the facts so developed may hurt or help one side or the other. In no case is the exercise of this power of the judge more important than in one like this, involving, as it does, lengthy circumstantial testimony, the force of which may be lost upon the jury if it is not properly presented or if its salient features are not called to the jury's attention at the time. The judge is the only disinterested lawyer connected with the proceeding. He has no interest except to see that justice is done, and he has no more important duty than to see that the facts are properly developed and that their bearing upon the question at issue are clearly understood by the jury.

The second ground of appeal goes to the heart of the case since it involves the contention that the evidence was insufficient to go to the jury. Dr. S. M. E. Simon, the appellant, was a physician who operated the Mercy Hospital at Williamson, West Virginia. Born in Austria in 1900 and educated in Germany where he received a medical degree, he came to America in 1928. After some professional experience in this country, he married a Roumanian woman who was also a graduate physician and had come to this country after the death of her first husband, a Roumanian banker, in 1929. After the marriage, the appellant was employed in hospitals in New Jersey and in West Virginia. Later he operated a hospital in Logan, West Virginia, which was subsequently sold, and finally he opened the Mercy Hospital at Williamson, West Virginia, in the early part of 1936.

On November 2, 1938, the appellant filed a voluntary petition in bankruptcy in the Southern District of West Virginia, accompanied by schedules, showing liabilities of $46,181.50 and assets of $684.62. Among the liabilities were certain claims against the appellant for medical malpractice and certain debts due his wife and his brother-in-law. The assets included accounts receivable of $584.62 and one share of stock in a hospital of $100. It is admitted that the bankruptcy proceeding was instituted by the appellant because he had been mistakenly advised that he could thereby escape the payment of certain tort claims against him.

The real estate covered by Count 5 greatly exceeds in value all the other property mentioned in the other counts of the indictment. In order to prove that moneys of the appellant had been invested in the real estate as charged, the government painstakingly presented a large mass of evidence consisting of checks, deposit slips, bank ledger pages, etc., and prepared two charts tracing the earnings of the appellant into the properties and the improvements thereon. The accuracy of these...