Travis v. United States, 2269.

• Decision Date: 03 November 1941
• Docket Number: No. 2269.,2269.
• Citation: 123 F.2d 268
• Parties: TRAVIS v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

123 F.2d 268 (1941)

TRAVIS v. UNITED STATES.

No. 2269.

Circuit Court of Appeals, Tenth Circuit.

November 3, 1941.

A. S. Wells, of Seminole, Okl. (Malcolm E. Rosser and Malcolm E. Rosser, Jr., both of Muskogee, Okl., on the brief), for appellant.

Cleon A. Summers, U. S. Atty., of Muskogee, Okl., for appellee.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

BRATTON, Circuit Judge.

Appellant was indicted for the crime of perjury. The indictment charged that there was pending in the United States Court for Eastern Oklahoma a certain cause in bankruptcy involving the estate of her husband, J. R. Travis; that the referee in bankruptcy acquired and had competent jurisdiction to hear and determine all material issues raised by the pleadings and claims in such cause; that the disposition made of nine United States bonds in the aggregate face value of $13,000 formerly owned by the bankrupt and in his possession became a material issue; that appellant offered herself as a witness in the hearing being conducted by the referee; that she was duly sworn by the referee who was authorized by law to administer the oath; that she testified under oath that she owned such bonds on January 11, 1937, and prior thereto, that her husband gave them to her, that between January 11 and November 16, 1937, she delivered them to her brother, Jack Finner, that he had cashed them for her and delivered the proceeds to her, and that she used such proceeds for general household and living expenses of herself and husband; that she knew such testimony, statements and declarations were material matters to the hearing being conducted; that such testimony was false and untrue in that appellant did not deliver the bonds to her brother, that he did not sell them for her account, and that she did not receive the proceeds thereof; that in truth and in fact her husband delivered the bonds to one Jess Faulkner (son-in-law of the bankrupt); that they were in the possession and control of Faulkner, and on deposit in a bank at Hugo, Oklahoma, for safekeeping at the time such false testimony was given; and that they remained there until December 12, 1939, when three of them, in the aggregate face value of $7,000, were delivered to the trustee and were subsequently sold on order of the referee as assets of the estate of the bankrupt.

A jury found appellant guilty, and the court sentenced her to confinement in jail for one day and to pay a fine of $500. She appealed.

The sufficiency of the indictment was assailed by demurrer on the grounds that the matters and things charged did not constitute an offense against the laws of the United States; that they did not constitute the crime of perjury as defined in section 125 of the Criminal Code, 18 U.S.C. A. § 231; and that the indictment was defective and insufficient in other respects. Section 5396, Revised Statutes, 18 U.S.C. A. § 558, provides that an indictment for perjury shall be sufficient if it sets forth the substance of the offense charged, the court in which it occurred, the person before whom the oath was taken, and that such court or person had authority to administer it, together with the proper averment showing the falsity of the matter in which the perjury is assigned. Ordinarily an indictment must embrace every element of the offense charged, must apprise the accused of the nature of the accusation, and must be sufficiently specific to protect him against a subsequent prosecution for the same offense. United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619; Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861; Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314; Weber v. United States, 10 Cir., 80 F.2d 687; Crapo v. United States, 10 Cir., 100 F.2d 996; Graham v. United States, 10 Cir., 120 F.2d 543.

This indictment specified the court in which the bankruptcy proceeding was pending, described the proceeding by number and style, set forth the name and official capacity of the person who administered the oath, charged that he was authorized by law to administer it, alleged the substance of the testimony given, alleged that such testimony was false, and alleged the true facts. In these respects, it was definite, free from ambiguity, complete, and in full conformity with the statute. It further charged in general language that the disposition made of the bonds was a material issue. That was sufficient, as the materiality of perjured testimony may be charged either by an allegation of its materiality or by pleading facts which of themselves show that it was material. Markham v. United States, 160 U.S. 319, 16 S.Ct. 288, 40 L.Ed. 441; Hendricks v. United States, 223 U.S. 178, 32 S.Ct. 313, 56 L.Ed. 394; Berry v. United States, 9 Cir., 259 F. 203; Ryan v. United States, 7 Cir., 58 F.2d 708; Claiborne v. United States, 8 Cir., 77 F.2d 682; Woolley v. United States, 9 Cir., 97 F.2d 258. And the giving of false testimony in a bankruptcy proceeding which relates to a material issue constitutes an offense under section 125, supra. Hammer v. United States, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118. It is clear that the indictment was not open to the attack directed against it.

In order to support the charge of perjury the false testimony must have related to a material issue in the bankruptcy proceeding. The question of materiality was for the court, not the jury. Sinclair v. United States, 279 U.S. 263, 298, 49 S. Ct. 268, 73 L.Ed. 692; Carroll v. United States, 2 Cir., 16 F.2d 951, certiorari denied, 273 U.S. 763, 47 S.Ct. 477, 71 L.Ed. 880; United States v. Slutzky, 3 Cir., 79 F.2d 504; Blackmon v. United States, 5 Cir., 108 F.2d 572. And the court instructed the jury that the testimony did relate to an issue which was material.

Appellant contends that the testimony did not concern a material issue and therefore cannot support the charge of perjury. The husband of appellant had United States bonds in the aggregate sum of $20,000 in a bank in Lawton, Oklahoma, for safekeeping. In November, 1933, he caused the records of the bank to be changed to show her as the depositor of them, and the bank issued a receipt to her. Some of the bonds were sold about a month later, some were redeemed in 1935, some were called, some were exchanged, and some additional purchases were made. The petition in bankruptcy was filed December 16, 1936. Bonds of the face value of $13,000 were in the bank at that time. They remained there until January 11, 1937, when appellant withdrew them. She testified that her husband gave her the bonds in 1933, and that they were her property continuously thereafter until she delivered them to her brother for disposition. The argument is that while the referee could require appellant to turn over to the...