Steigman v. United States

• Decision Date: 30 January 1915
• Docket Number: 1876.
• Citation: 220 F. 63
• Parties: STEIGMAN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

220 F. 63

STEIGMAN et al. v. UNITED STATES.

No. 1876.

United States Court of Appeals, Third Circuit.

January 30, 1915

Rehearing Denied March 3, 1915.

The evidence for the government tended to prove the following facts: Louis Steigman was engaged in the retail clothing business in Plainfield, N.J., and his brother, David Steigman, was engaged in the same business in New Brunswick N.J. In March, 1913, the store of David Steigman was burned and in September, 1913, he opened a new store and conducted fire sales and other special sales until December 24, 1913. In the fall of 1913, Louis Steigman purchased goods in unusual quantities, for which he failed to make payments. The goods so purchased, or a substantial part of them, were from time to time shipped or carted from his store in Plainfield to the store of David in New Brunswick. By this method, the stock of Louis was depleted and the stock of David correspondingly augmented. On December 23, 1913, Louis admitted bankruptcy, and on December 24, 1913, an involuntary petition in bankruptcy was filed against him. On the day upon which Louis admitted bankruptcy, arrangements were made by David and Louis for the removal of the entire stock from the store of David. Early on the morning of December 24th, being the day upon which the involuntary petition in bankruptcy was filed against Louis, two men, with whom the alleged arrangement for the removal of the goods had upon the previous day been made, opened the store of David, loaded all the goods in a van, and took them away. The defendants introduced testimony to show that the transfer of goods from one store to the other constituted transactions in the ordinary course of business.

Benjamin M. Weinberg, of Newark, N.J., for plaintiffs in error.

Walter H. Bacon, of Bridgeton, N.J., for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

WOOLLEY Circuit Judge (after stating the facts as above).

The defendants were indicted for conspiracy under section 37 of the United States Criminal Code (section 5440, Revised Statutes), to violate section 29b of the Bankruptcy Act of July 1, 1898, and upon trial were convicted. Section 5440 R.S., under which the charge of conspiracy was made, provides that 'if two or more persons conspire * * * to commit any offense against the United States, * * * and one or more of such parties do any act to effect the object of the conspiracy, ' they shall be punished in the manner prescribed; and the law of the United States which it is alleged the defendants conspired to offend, being section 29b of the Bankruptcy Act, provides punishment for a person upon conviction for 'having knowingly and fraudulently concealed while a bankrupt * * * from his trustee any of the property belonging to his estate in bankruptcy.'

The assignments of error are numerous, and extend to the sufficiency of the indictment, the relevancy of the testimony, and the charge of the court. The error most insistently urged to have been committed by the court below was its refusal to grant a motion to quash the indictment.

It has been ruled by this and other Circuit Courts of Appeal that a motion to quash an indictment is ordinarily addressed to the discretion of the court, and will not be reviewed by an appellate court save in cases where the failure to properly exercise judicial discretion amounts to a denial of justice. Carlisle v. United States, 194 F. 827, 114 C.C.A. 531; Hillegass v. United States, 183 F. 199, 105 C.C.A. 631. The case presented is not within the exception of the rule, but the defects charged to exist in the indictment are so related to the subject-matter of other applications made at the trial, that we feel justified in giving this specification of error consideration in this opinion which otherwise would be withheld.

The indictment charged that Louis and David Steigman unlawfully conspired and fraudulently agreed together that Louis Steigman should commit an act of bankruptcy, and thereafter be adjudged bankrupt, and that, while a bankrupt, he (Louis Steigman) should knowingly and fraudulently conceal from the trustee of his estate in bankruptcy certain described property thereto belonging, and alleged acts in furtherance of the design, substantially as recited in the statement of the case.

The first and principal matter urged as a defect in the indictment is that 'the indictment failed to show that a trustee in bankruptcy for the said Louis Steigman was ever appointed. ' In support of this contention, the defendants cited no case directly in point, but relied upon deductions from cases decisive of altogether different matters. Alkon v. United States, 163 F. 810, 90 C.C.A. 116; Kerrch v. United States, 171 F. 366, 96 C.C.A. 258; Gilbertson v. United States, 168 F. 672, 94 C.C.A. 158; Pettibone v. United States, 148 U.S. 197, 13 Sup.Ct. 542, 37 L.Ed. 419.

The precise question raised by this specification is whether, in an indictment charging conspiracy to conceal property from a trustee, an allegation of the appointment of a trustee is an essential allegation, or whether the failure to make such an allegation violates the cardinal rule of criminal pleading that everything made essential to constitute the crime must be alleged. The crime charged by the indictment is conspiracy, and it has been held that:

'The crime of 'conspiracy' is sufficiently charged if it be stated that two or more persons, naming them, conspired (that is, agreed together) to commit some offense against the United States (that is, commit some act declared to be a crime by some statute of the United States); and it is also charged that one or more of such parties did an act to effect (that is, carry out) the object of such conspiracy. * * * In charging a conspiracy to commit a crime against the United States and overt acts done to effect the object of such conspiracy, it is not necessary to allege that the crime which the parties conspired to commit was actually committed, or that any act in and of itself evil was done in aid of effecting the object of such conspiracy. ' United States v. Wupperman (D.C.) 215 F. 135; Ryan v. United States, 216 F. 13, 31, 132 C.C.A. 257.

The crime of conspiracy as contemplated by section 5440, R.S has its origin in an agreement between two or more persons to do an act prohibited by law, and it is completed when an overt act is done toward that end, without regard to a violation of the law by the consummation of the act prohibited. In United States v. Cohn et al. (C.C.) 142 F. 983, a charge of conspiracy against the defendants was made under the same statute and alleged substantially...