United States v. Olweiss

• Decision Date: 17 January 1944
• Docket Number: No. 29.,29.
• Citation: 138 F.2d 798
• Parties: UNITED STATES v. OLWEISS et al.
• Court: U.S. Court of Appeals — Second Circuit

138 F.2d 798 (1943)

UNITED STATES v. OLWEISS et al.

No. 29.

Circuit Court of Appeals, Second Circuit.

November 3, 1943.

Writ of Certiorari Denied January 17, 1944.

Before L. HAND, CHASE, and CLARK, Circuit Judges.

Bergner & Bergner, of New York City (I. Maurice Wormser, David Bergner, and Benjamin Poller, all of New York City, of counsel), for appellants Schwarz and Nass.

Ellsworth Baker, of Monticello, N. Y. (M. Richard Tamny, of New York City, of counsel), for appellant Olweiss.

K. Bertram Friedman and James B. M. McNally, U. S. Atty., both of New York City, for appellee.

Writ of Certiorari Denied January 17, 1944. See 64 S.Ct. 483.

L. HAND, Circuit Judge.

The three defendants, Olweiss, Schwarz and Nass, appeal from a judgment of conviction for concealing some $17,000 of the assets of Olweiss from his trustee in bankruptcy. The points they raise are that the only competent evidence did not support the verdict; that the judge committed various errors during the course of the trial and in his charge; and that he improperly forced a verdict, when the jury was unable to agree. To an understanding of these points some statement of the evidence is necessary. Apparently until April 19, 1934 — although the exact day is somewhat uncertain — Olweiss, Schwarz and Nass had been conducting a wholesale green grocery business in Liberty, New York, either as co-owners or partners. On that day they signed several papers by which Schwarz and Nass purported to transfer to Olweiss all their interest in the business, and agreed to serve as employees, each at $50, and later at $100, a month. The price fixed in the agreement for their share in the business was $1,000 to be paid by a cheque post-dated to August first, and such a cheque Olweiss signed and delivered, apparently not until May 4th. Although as between the parties this transfer may have been genuine, Schwarz and Nass continued as before to supervise and direct the business; there was no outward change in their authority, and from all the evidence the jury might have found that they still retained their former interest in the business. A large part of the stock was kept in a barn in Fallsburg, New York, which they used as a storehouse; and at the end of July a flood entered this building and did some damage to the goods. The amount of this was disputed; the defendant said that the loss was over $15,000; other witnesses that it was very little; on the record we should have accepted the lower estimate, and of course it was in any view a question for the jury. Whatever the amount of that loss, the three kept the business going until August 22 and closed the shop on the 23rd. Olweiss filed a voluntary petition on the 24th; and a trustee was appointed on September 17th, 1934. The value of the goods on hand when the business closed down is uncertain; arguendo, we will accept Olweiss's estimate of $6,000 — the highest, and probably much too high. On the 21st Schwarz and Nass cashed the cheque for $1,000 given them in May; and two of the witnesses for the prosecution testified that shortly before this, each had separately taken money from the cash register. In addition, there was testimony that about a week before the bankruptcy they had told a truckman to deliver assorted goods to several hotels; the deliveries being in the evening and no receipts being taken. Another employee, Rosenberg, swore that Nass went along with him on or about the 21st, when he delivered from Fallsburg three full loads of a two and a half ton truck to a hotel which also gave no receipt. He had never before used a truck of larger capacity than half a ton. (Olweiss's books contained no entries of any of these deliveries.)

In addition to this testimony the prosecution put in evidence the computation of an accountant from the Federal Bureau of Investigation, made from Olweiss's books for the period beginning April eleventh. From this it appeared that there had been purchases of nearly $95,000 and an unaccounted shortage of about $26,800. Since, however, the accountant had included debts of $1,500, on the evidence only of proofs of claims in bankruptcy, so much should be deducted, reducing the shortage to about $25,000. If we allow $6,000 as the value of the assets on hand at the bankruptcy, the discrepancy becomes $19,000. The accused objected to the competency of this computation; they argued that it was vitiated by the fact that in making it the accountant had used other documents than Olweiss's books, and that he had assumed that the goods had been sold at a profit of seven and a half per cent. As to the first, the accountant swore that the proofs of claim already mentioned were the only documents outside the books which he had used; and we have just made the necessary correction for that. As to the second, Olweiss on the stand gave testimony from which the jury was justified in finding that he sold at an even higher profit than seven and a half per cent. With this as a foundation the computation was clearly competent, since without some such assistance the books of account are altogether unintelligible to a jury. The books themselves were obviously competent against Olweiss personally; and Schwarz and Nass had been shown to have had so intimate a relation to the business — even assuming that they were only employees — that they were competent against them as well. Once the flood loss was eliminated, the computation became substantially incontrovertible proof of guilt. Taking the evidence as a whole, it is difficult to see how any jury could have failed to convict all three of the accused.

The chief objection being so disposed of, we proceed to the supposed errors during the course of the trial. Schwarz and Nass complain that although they were not indicted for conspiracy, they were convicted as accomplices of Olweiss, and upon evidence admissible only against him. It was proper to charge them as principals — which they probably were in any event — even though they were only accessories. (§ 550, ...