Ulmer v. United States

• Decision Date: 02 February 1915
• Docket Number: 2501.
• Citation: 219 F. 641
• Parties: ULMER v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

219 F. 641

ULMER v. UNITED STATES.

No. 2501.

United States Court of Appeals, Sixth Circuit.

February 2, 1915

W. H Boyd and F. J. Wing, both of Cleveland, Ohio, for plaintiff in error.

U. G Denman, of Cleveland, Ohio, for the United States.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

DENISON Circuit Judge.

Ulmer was indicted for perjury in the giving of testimony before a referee in bankruptcy regarding a transaction between Ulmer and the bankrupt firm. Just as this firm was starting in business, Ulmer, who was their landlord and who had maintained various business relations with them, gave to them his check for $1,500. They deposited it in their bank account which they opened the same day, and it was duly paid. On the same day, they drew against such account three checks, to various payees, aggregating $1,500. The business was short-lived, and, in the bankruptcy proceedings a few months later, this transaction was investigated. Evidently, it was claimed that the transaction was merely colorable and was only an exchange of checks for the purpose of padding the bankrupts' bank deposit so that the book could be exhibited showing a deposit of $3,500 instead of the actual net deposit of $2,000. On the other hand, it was claimed that the bankrupts actually had $3,500 in cash or good checks that they gave Ulmer $1,500 in cash in exchange for his check to meet his immediate need of currency; and that the smaller checks aggregating $1,500 were not given to Ulmer or for his benefit. As a witness before the referee, Ulmer testified that the consideration received by him for his check was cash, and that the transaction was not an exchange of checks. The jury found that this statement was false and convicted him of perjury, whereupon he brought this writ of error.

The first claim is that the indictment was inadequate because it did not sufficiently state the antithetical facts necessary to make clear that the testimony was substantially false. This position is based upon a line of decisions of which U.S. v. Pettus (C.C.) 84 F. 791, is fairly typical. More specifically, it is pointed out that while the indictment charges that Ulmer testified he had received $1,500 in currency, and charges that the statement was untrue, yet that the assignment (the antithesis alleged) only says that it was 'untrue in this: That the said Dan Ulmer did not * * * receive the amount of $1,500 in currency. ' The practical criticism is that it should have been positively alleged that he did not receive $1,500 or any substantially similar sum, so as to make clear that he did not receive (e.g.) $1,495. Again, it is pointed out that, while he testified to receiving $1,500 in cash, the assignment is that he did not receive $1,500 in exchange for or in connection with a check. The criticism is that the testimony and the assignment are not necessarily inconsistent, and that the recital of the testimony should have been more specific or the assignment should have been more general. Other similar imperfections are pointed out.

It is sufficient to say of all these objections to the indictment that we regard them as overnice. As we said in Daniels v. U.S., 196 F. 459, 465, 116 C.C.A. 233, 239:

'In such ambiguity as exists, we fail to find any failure to state facts constituting a crime or any tendency to mislead the respondent or any danger that he will be exposed to a second prosecution on account of any of the subject-matter; and these are the tests which will, in most cases, determine the sufficiency of the description of the offense as found in an indictment. ' U.S. v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; Bennett v. U.S. (C.C.A. 6) 194 F. 630, 114 C.C.A. 402, affirmed 227 U.S. 333, 33 Sup.Ct. 288, 57 L.Ed. 531.

See, also, G.R. & I. Ry. v. U.S. (C.C.A. 6) 212 F. 577, 583, 129 C.C.A. 113, upon the analogous question of variance.

Further, no demurrer was filed or motion to quash made or objection to the indictment effectively taken, until by motion in arrest after verdict. In such case, nothing less than substantial failure in substance in the indictment can avail defendant. Formal or artificial insufficiencies are waived. Dunbar v. U.S., 156 U.S. 185, 191, 192, 15 Sup.Ct. 325, 39 L.Ed. 390; Rosen v. U.S., 161 U.S. 29, 34, 35, 16 Sup.Ct. 434, 480, 40 L.Ed. 606; Tyomies Pub. Co. v. U.S. (C.C.A. 6) 211 F. 385, 389, 128 C.C.A. 47.

The conviction is next attacked, because neither indictment nor proof sufficiently shows the materiality of the false testimony. This testimony was given in some proceeding before the referee. Doubtless, it appeared clearly enough in the court below just what this proceeding was; but the record brought to this court does not directly show. A specific issue had been framed before the referee between the trustees and Ulmer regarding the ownership of some fixtures, and it is suggested that the false testimony was given on the trial of this issue. If this was the proper inference, the materiality of the testimony would, perhaps, be uncertain. On the other hand, sections 21a and 38(2) of the Bankruptcy Act (Comp. St. 1913, Sec. 9622) authorize the court to require any person to appear before the referee 'to be examined concerning the acts, conduct or property of a bankrupt. ' On November 13th the referee made an order that Ulmer appear before him on that day 'to submit to an examination under the acts of Congress relating to bankruptcy. ' The testimony upon which the charge of perjury is predicated was given, part on the 13th of November and part at an adjourned session on the 20th of November. It is clear from the charge of the court that the judge supposed the testimony involved had been given in the course of a general examination under section 21. No objection was made or exception taken that counsel thought it had been given upon the issue of who owned the fixtures; and if, in view of this unchallenged assumption by the court, there remained doubt as to the nature of the proceeding, it would be removed by observing that the issue as to the fixtures was finally decided on November 16th, so that the testimony given on November 20th must have been in the general examination to which Ulmer submitted pursuant to the referee's order. As this testimony on the 20th was the same as on the 13th, the same inference applies to the earlier testimony.

The allegations of the indictment as to materiality we think sufficient; but the court charged the jury that, as matter of law, this testimony was material to the issue under examination, so that there was nothing for the jury to consider on that subject; and an exception was directed to this point. It therefore becomes necessary to determine what the issue was under the examination, and to see if the court could positively say that it would be material to this issue whether Ulmer, in exchange for his check given to the bankrupts, received $1,500 in cash or received the three checks which the bankrupts drew on that day. The right and power of the referee to make the order were not challenged, but Ulmer appeared and submitted to the examination. The purpose and scope of an examination under this section have not been much considered in cases where the permissible extent of such inquiry was necessary to be decided-- perhaps because the generality of the language used has been thought all-sufficient. The Supreme Court said in Cameron v. U.S., 231 U.S. 710, 717, 34 Sup.Ct. 244, 246 (58 L.Ed. 448):

'The object of the examination of the bankrupt and other witnesses to show the condition of the estate is to enable the court to discover its extent and whereabouts, and to come into possession of it, that the rights of creditors may be preserved.'

This decision also observes that subdivision 9 of section 7 should be read in connection with section 21a; and it is difficult to see why the examination concerning 'the acts, conduct and property of a bankrupt,' provided by 21a, is less broad in its scope than the examination of the bankrupt himself, provided by section 7, concerning 'all matters which may affect the administration and settlement of his estate.'

In Re Carley (D.C.) 106 F. 862, 863, Judge Evans says that the object of this proceeding is 'to secure information on those subjects for use in the administration of the bankrupt's estate. The statute was intended for beneficial purposes, and, in order to effect them, witnesses should fully disclose all their knowledge relative either to the acts, the conduct, or the property of the bankrupt.'

Speaking for the Circuit Court of Appeals of the Second Circuit in Re Horgan, 98 F. 414, 415, 39 C.C.A. 118, 119, Judge Wallace said that these provisions of the Bankruptcy Act 'are intended to enable creditors to discover transactions which may affect the right of the bankrupt to obtain a discharge, and to enable the trustee to ascertain whether any assets exist which should be collected and applied toward the payment of the bankrupt's debts.'

The same court, in an opinion by Judge Rogers (In re Samuels, 215 F. 845, 132 C.C.A. 187), speaking of this section, said:

'That section intended to and provides a searching and summary method for the discovery of hidden assets, not only by the examination of the bankrupt, but of other witnesses. The proceeding it authorizes is meant to assist the trustee in discovering and collecting the assets. * * * The person to be examined cannot object to being sworn and examined on the ground that no

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