United States v. Cohn

• Decision Date: 17 January 1906
• Citation: 142 F. 983
• Parties: UNITED STATES v. COHN et al.
• Court: U.S. District Court — Southern District of New York

142 F. 983

UNITED STATES v. COHN et al.

United States Circuit Court, S.D. New York.

January 17, 1906

Henry L. Burnett, U.S. Dist. Atty.

Feltenstein & Rosenstein, for defendants.

HOLT District Judge.

This is a demurrer to an indictment. The indictment alleges, in substance, that the defendants entered into a conspiracy to conceal from the trustee property belonging to an estate in bankruptcy. The date at which the crime is alleged to have been committed was before bankruptcy proceedings were begun and the substantial ground of the demurrer is that, as the bankrupt act does not make any act for the fraudulent concealment of property a crime, if committed before the proceedings in bankruptcy are begun, a conspiracy to commit such acts, entered into before the bankruptcy, is not a crime. The indictment is brought under section 5440 of the Revised Statutes (U.S. Comp. St. 1901, p. 3676), and section 26b of the bankrupt act (Act July 1, 1898, c. 541, 30 Stat 554 (U.S. Comp. St. 1901, p. 3433)). Section 5440 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 are criminally liable. Section 29b of the bankrupt act provides that it is a crime for a person to knowingly and fraudulently conceal, while a bankrupt, from his trustee, any of the property belonging to his estate in bankruptcy. This provision of the bankrupt act does not make any act of the bankrupt before the bankruptcy criminal. But if a bankrupt before the bankruptcy, has concealed his property, and, after his trustee is appointed, continues to conceal it from the trustee, he is criminally liable under this section, and, if indicted for such crime, evidence of his acts of concealment before the bankruptcy, as well as of those subsequent thereto, would undoubtedly be admissible as part of the res gestae. A conspiracy to commit a crime always, in the nature of the case, precedes the commission of the crime; and, in my opinion, it does not follow, because, at the time that a conspiracy is entered into to conceal property from a trustee, no trustee has been appointed and no proceedings in bankruptcy begun, that therefore the crime of conspiracy under section 5440 cannot have occurred.

The indictment alleges, as a part of the conspiracy, a plan to bring about the filing of petitions in involuntary bankruptcy and...