Tapack v. United States

• Court: U.S. Court of Appeals — Third Circuit
• Citation: Tapack v. United States, 220 F. 445 (3rd Cir. 1915)
• Decision Date: 18 February 1915
• Docket Number: 1881.
• Parties: TAPACK et al. v. UNITED STATES.

220 F. 445

TAPACK et al. v. UNITED STATES.

No. 1881.

United States Court of Appeals, Third Circuit.

February 18, 1915

Merritt Lane, of Jersey City, N.J., for plaintiffs in error.

J Warren Davis, U.S. Dist. Atty., of Trenton, N.J., and Archibald Palmer, Sp. Asst. U.S. Dist. Atty., of New York City (William Hawkins, of New York City, of counsel), for the United States.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

J. B McPHERSON, Circuit Judge.

The indictment in this case was found at January term, 1913, and charged five defendants with conspiracy under section 5440 R.S. (section 37, Penal Code of 1909). One of them was acquitted, and the other four, Jacob Torem, Samuel Moore Louis Tapack, and Nathan Tapack, were convicted. Of these the last two have taken the present writ of error. In the District Court the sufficiency of the indictment was challenged by motions to quash, for a directed verdict, for a new trial, and in arrest of judgment, and this subject has been urged upon our attention with special earnestness.

In substance the indictment avers that the five defendants unlawfully conspired, etc., to commit an offense against the United States, and then proceeds to describe the crime as follows: On and before September 27, 1912, Torem and Moore were silk manufacturers who had become insolvent and unable to meet their obligations, as all the defendants well knew; they were all contemplating and expecting that Torem and Moore would be adjudicated bankrupt, and a trustee be appointed; the bankrupts had certain property (describing it) which would pass to the trustee in case of the expected adjudication; whereupon all the defendants, 'in order to defraud the creditors of them, the said Jacob Torem and Samuel Moore, copartners,' etc., 'did corruptly, wickedly, and unlawfully conspire,' etc., 'that the said Jacob Torem and Samuel Moore, copartners,' etc., 'should conceal the said property, and should continue to conceal the same after they should be adjudicated bankrupts, so contemplated,' etc., from the person thereafter to be appointed trustee. The indictment further avers the subsequent adjudication and the appointment of a trustee, and sets forth as the overt act that on the next day, September 28, all the defendants did remove the goods described, and did 'secrete and conceal the said property, and still secrete and conceal the same,' from the trustee.

That other persons than a bankrupt may commit an offense by conspiring with him that he shall conceal his goods is a proposition that does not seem to need discussion, in view of Cohen v. U.S. (C.C.A., 2d Cir.) 157 F. 651, 85 C.C.A. 113, and the analogous decision in Nemcof v. U.S. (C.C.A., 3d Cir.) 202 F. 911, 121 C.C.A. 269.

See also, U.S. v. Holte, 236 U.S. 140, 35 Sup.Ct. 271, 59 L.Ed. . . ., decided February 1, 1915. Indeed, we do not understand this position to be in serious dispute; the indictment is attacked mainly because it does not use the statutory words 'knowingly and fraudulently' in describing the crime that was the object of the conspiracy. It is undoubtedly true that section 29b (1) of the Bankruptcy Act describes the crime as a knowing and fraudulent concealment, and if this indictment does not contain the fair equivalent of these words it is fatally defective. Upon the other hand, although the language of the indictment might have been improved in form or arrangement, section 1025, R.S., requires us to uphold it if the defect or imperfection did not tend to the prejudice of the defendants. Just how they have been prejudiced may be a matter of some doubt. They understood exactly with what crime the government believed them to be charged; during eight days the trial was conducted on the theory that the offense was conspiracy to conceal goods knowingly and fraudulently; and the judge submitted the question of...