United States v. Lynch, 4021.

• Decision Date: 01 January 1926
• Docket Number: No. 4021.,4021.
• Citation: 11 F.2d 298
• Parties: UNITED STATES v. LYNCH.
• Court: U.S. District Court — Western District of Louisiana

11 F.2d 298 (1926)

UNITED STATES v. LYNCH.

No. 4021.

District Court, W. D. Louisiana, Monroe Division.

January 1, 1926.

P. H. Mecom, U. S. Dist. Atty., of Shreveport, La.

Randle, Shotwell & Brown and H. H. Russell, all of Monroe, La., and Geo. Wesley Smith, of Rayville, La., for defendant.

DAWKINS, District Judge.

On the 27th day of November, 1923, the grand jury for the Monroe division of this court returned an indictment against Virgil M. Lynch, as follows:

Count 1. "That heretofore, to wit, on or about the 9th day of January, nineteen hundred and twenty-three, at Monroe, in the parish of Ouachita, state of Louisiana, Western district of Louisiana, and within the jurisdiction of this honorable court, one V. M. Lynch, whose name is to your grand jurors otherwise unknown, being then and there a duly adjudicated bankrupt, by a decree of this honorable court, dated December 11, 1922, did knowingly, willfully, and fraudulently conceal while a bankrupt, from his trustee, property belonging to his estate in bankruptcy; that is to say, that at the time and place and within the jurisdiction aforesaid the said V. M. Lynch, did knowingly, willfully, unlawfully, and fraudulently conceal from H. R. Speed, who was duly appointed trustee of said bankrupt estate, on January 9, 1923, certain goods, wares, merchandise, moneys, funds, credits, and other things of value, a further and more particular description thereof being to your grand jurors unknown, all of which the said V. M. Lynch then and there well knew was contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."

Count 2. "And your grand jurors aforesaid, upon their oaths aforesaid, do further present: That heretofore, to wit, on or about the first day of December, nineteen hundred and twenty-two, at Monroe, in the parish of Ouachita, state of Louisiana, and within the jurisdiction of this honorable court, one V. M. Lynch, whose name is to your grand jurors otherwise unknown, did knowingly, willfully, and fraudulently make a false oath or account in a proceeding in bankruptcy; that is to say, that at the time and place and within the jurisdiction aforesaid the said V. M. Lynch filed a schedule under oath, purporting to contain a true and correct inventory of all the property of the said bankrupt, whereas in truth and in fact the said schedule was not a true and correct inventory of all the property of the said bankrupt, in that it did knowingly, willfully, unlawfully, and fraudulently conceal, omit, and fail to set forth certain merchandise, goods, wares, moneys, funds, credits, and other things of value, a further and more particular description thereof being to your grand jurors unknown, belonging to said bankrupt estate, all of which the said V. M. Lynch, when so filing said schedule in bankruptcy as aforesaid, then and there well knew was contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States."

The case, having been continued from time to time because of the physical condition of the accused, was called on October 6, 1925, when, there having been no previous arraignment, certain motions to quash were filed. The first of these motions was directed to the alleged fact that the foreman of the grand jury returning the bill was the president of a bank which was a creditor of the bankrupt estate to the extent of some $5,000, and that for this reason the said foreman was disqualified to serve upon said jury while considering defendant's case. The second motion, or demurrer, was based upon the contention that the bill did not charge a crime, in that the allegations amounted to mere conclusions of the pleader, without setting forth any facts for their support, or in any event, were too vague and indefinite to enable accused to plead thereto, or to serve as the basis of either a plea of acquittal or conviction under any future charge growing out of said bankruptcy.

The evidence introduced upon the trial of the first motion showed that the foreman of the grand jury was, at the time, president of a local bank which was a creditor of the bankrupt estate to the extent claimed; but I think it was disclosed that the officer in question recused himself from voting upon the bill. Inasmuch as he was the foreman, it was necessary under the law that he should sign the bill as such, or that the court should have designated some one to act in his place, if called to its attention; yet I do not think that this fact can be said to have rendered the indictment invalid, if there were a sufficient number of other jurors voting thereon to find a true bill. There was some suggestion by counsel for accused in examining the witnesses that perhaps there were not 12 jurors other than the foreman voting for the bill. However, this was only a suggestion, and the burden being upon the accused to show affirmatively facts to overthrow the presumption to validity of an indictment regularly returned, I think he has failed to do so, and this motion should be overruled. 31 C. J. p. 807, verbo "Indictments and Informations," and authorities cited.

This brings me to the question of the...