Somberg v. United States

• Decision Date: 19 June 1934
• Docket Number: No. 5075.,5075.
• Citation: 71 F.2d 637
• Parties: SOMBERG v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

71 F.2d 637 (1934)

SOMBERG v. UNITED STATES.

No. 5075.

Circuit Court of Appeals, Seventh Circuit.

June 19, 1934.

David D. Stansbury and George F. Callaghan, both of Chicago, Ill., for appellant.

Dwight H. Green, U. S. Atty., and James C. Leaton, Asst. U. S. Atty., both of Chicago, Ill.

Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.

SPARKS, Circuit Judge (after stating the facts as above).

The first count of the indictment charges conspiracy to commit an offense against the United States under section 37 of the Criminal Code, 18 USCA § 88. The second count charges concealment of property of Motor Parts Corporation, bankrupt, from its trustees, under 11 USCA § 52 (b) (1); the third count charges the falsifying of records of the corporation, under 11 USCA § 52 (b) (7); and the fourth count charges appellant and Goldberg, officers of the corporation, with having transferred and concealed its property in contemplation of bankruptcy and with intent to defeat the operation of the Bankruptcy Act and further charges that Frankel and the corporation abetted them in violation of 11 USCA § 52 (b) (6).

It is contended by appellant that the court erred in overruling the demurrer to each count of the indictment. The first count was challenged for the reason that no offense was therein charged. It charged that appellant as president and treasurer, and Goldberg as secretary, dominated and controlled the corporation, and that they together with the corporation and Frankel, in contemplation of the bankruptcy of, and the election of a trustee in bankruptcy for the corporation, conspired that the said corporation should conceal from its trustee property which would then belong to the estate in bankruptcy. The specific objection raised is that the language does not charge that appellant and his codefendants conspired to conceal the assets, but that they conspired to have the corporation conceal them. With respect to this contention there is no merit. See Bartkus v. United States (C. C. A.) 21 F.(2d) 425. Appellant, however, contends that this count may not be construed to charge him with conspiracy to commit the crime by causing the company to commit it, because the second and fourth counts charge the concealment to him and Frankel. He bases this conclusion on the premise that the several counts of an indictment should be considered together. The premise is incorrect as applied to a separate demurrer to each count, and it necessarily follows that the conclusion is erroneous.

Appellant's objection to the second count is that the charge of concealment is limited to August 6, 1930, and it is not alleged that the concealment was continuous thereafter. In other words he contends that unless concealment lasts, it ceases to be concealment, and if continuity is not alleged, the count is not sufficient to withstand demurrer. In alleged support of this contention he quotes from a dissenting opinion in Gretsch v. United States (C. C. A.) 231 F. 57, without designating it as such. However, in that case the validity of the indictment was not challenged by demurrer, nor was the question now before us presented. Under the indictment before us, time was not of the essence of the offense, and under its second count the act of concealment might have been proven at any time after the corporation became a bankrupt until the time the indictment was returned, although the exact time alleged was August 6, 1930. It is not denied that concealment of assets is a continuing offense, and that the entire continuous concealment constitutes but one offense. In other words, the concealor can be held but for one offense of concealing during the period of a continuous concealment. It may well be said that unless concealment lasts, it ceases to be concealment, but that is not tantamount to saying that the subsequent revealing of an illegal concealment renders the act legal ab initio. If illegal concealment presupposes continuity, then the general charge of illegal concealment is sufficient to withstand a demurrer, all other elements of the crime being present. The evidence submitted unquestionably proved continuous concealment, for indeed so far as this record shows, the items concealed never were found. If it be admitted that continuity of concealment should have been alleged, yet the defect, if it be such, is one of form which, as shown by the evidence, did not tend to appellant's prejudice, and we are without authority to hold the count insufficient. 18 USCA § 556.

Appellant's objection to the third count is that it is duplicitous and inconsistent in that it charges that the books were falsified after the filing of the bankruptcy petition and prior thereto, in contemplation of bankruptcy. It is at least questionable whether this alleged error was presented to the trial court, but conceding that it was, there was no error. Crain v. United States, 162 U. S. 625, 16 S. Ct. 952, 40 L. Ed. 1097.

With respect to this count appellant asserts error in the court's refusal to grant a bill of particulars as to the manner, the times, and the items of falsification of records. This was a matter within the discretion of the trial court and will not be disturbed unless abused. Wong Tai v. United States, 273 U. S. 77, 47 S. Ct. 300, 71 L. Ed. 545. Appellant neither charges nor proved prejudice or surprise as a result of this ruling, and we are bound to hold there was no error. 18 USCA § 556; Kanner v. United States (C. C. A.) 21 F.(2d) 285.

Appellant's objection to the fourth count is that the charging of concealment both in contemplation of bankruptcy and with intent to defeat the operation of the act constituted duplicitous pleading. Under the ruling in Wong Tai v. United States, supra, there was no error in overruling this contention. Appellant...