United States v. Perlman

• Decision Date: 21 December 1917
• Citation: 247 F. 158
• Parties: UNITED STATES v. PERLMAN.
• Court: U.S. District Court — Southern District of New York

247 F. 158

UNITED STATES v. PERLMAN.

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

December 21, 1917

Francis G. Caffey, of New York City (Harold Harper, of New York City of counsel), for the United States.

Silberberg & Davis, of New York City (Louis Marshall and A. A Silberberg, both of New York City, of counsel), for defendant.

MANTON District Judge.

The defendant was indicted by the federal grand jury for the crime of perjury on July 20, 1917, and was arraigned on this day and pleaded not guilty, with leave to withdraw his plea and enter a demurrer. On August 8, 1917, he demurred to the indictment. On October 6, 1917, a motion to quash the indictment was served, based on the ground of insufficient evidence before the grand jury. On November 1, 1917, an order was filed overruling the motion to quash. On November 5 1917, a plea in abatement was filed, and on November 7, 1917 a second motion to quash was served.

We have for consideration now a motion by the government to strike out the plea of abatement, upon the ground that it is not timely; also for determination the second motion to quash the indictment.

The defendant's perjury is alleged to have been committed while a witness in behalf of the Perlman Rim Company in a litigation instituted by it, over a patent, against the Firestone Tire & Rubber Company. The indictment charges:

'And the said Louis H. Perlman being duly sworn, as aforesaid, it then and there upon the trial of the said issue became and was a material matter and inquiry whether or not the said Louis H. Perlman has been and stopped in London, England, in the year 1895, and had been there concerned with a syndicate known as the American Ocyzone Syndicate, and had been there arrested and charged with an offense in connection with the conduct by the said Louis H. Perlman and one Edward Ames Weber of the said syndicate, and an examination had been had before one Magistrate Bridge at the Bow Street Police Court, and the said Louis H. Perlman thereafter had been indicted for larceny and cheating under the British law in such connection, and had been put in jail for two months and had finally furnished bail, and whether or not the said Louis H. Perlman, having been arrested, charged, indicted, put in jail, and bailed as aforesaid, had fled his bail, and was then and there, that is to say, at the time of the trial of the suit of Perlman Rim Corporation against Firestone Tire & Rubber Company, Incorporated, as aforesaid, a fugitive from justice, and whether or not the said Louis H. Perlman remembered, recollected, and recalled the aforesaid occurrences and events.' And it is further charged that as a witness in said case he swore falsely and corruptly, knowingly, and willfully, contrary to such oath, in substance that he did not remember, recollect, or recall whether or not he had stopped in London, England, in the year 1895, or whether or not he had been concerned in the syndicate known as the American Ocyzone Syndicate, or whether or not he had been there arrested and charged with an offense in connection with the conduct of said Louis H. Perlman, or whether or not an examination was had before Magistrate Bridge in the Bow Street Police Court, and there charged with larceny and cheating under the British law in such connection, and whether or not he spent two months in jail and finally was released on bail, and whether or not he thereafter fled his bail, and whether or not he was a fugitive from justice; the indictment charging further that he had knowledge of these occurrences.

The claim of the defendant is one Martin W. Littleton was called as a witness before the grand jury and gave testimony, which concededly is hearsay, which in substance was that he had heard or was told that somebody said that the defendant stated, in reference to the alleged facts which form the basis of the perjury charge, that the Firestone suit was not being tried fairly and that the Firestone people were trying to rake up old history, and it is claimed that this reference to old history is the sole basis for the identification of the defendant as the man who figured in the criminal prosecution in the London court.

It is claimed that the identification, one of the necessary links of the chain of accusation against the defendant, is predicated upon hearsay and illegal evidence, in that the testimony given by Mr. Littleton is the sole testimony as to the identification, and therefore the motion to quash the indictment should be granted. The affidavit of Mr. Odger is support of the motion to quash sets forth the source of information upon which the claim is based as the only evidence of identification of the person before the grand jury, and states that four of the grand jurors told him that there was no evidence of identification other than that given by Martin W. Littleton which has been referred to. The only evidence submitted in opposition is the affidavit of the assistant United States attorney, who says that the statement of what occurred in the grand jury room is not a true or correct statement. He does not state, however, what was the evidence before the grand jury, taking the position that he is not at liberty to do so because of the secrecy of the proceeding before that body.

At the outset it might be observed that there was no impropriety in interviewing the grand jurors, or in the grand jurors telling what transpired if they recollected it. This information was solicited and obtained after the indictment was found, and the defendant apprehended and submitted to the jurisdiction of the court and his release upon bail. In discussing this question in Atwell v. U.S., 162 F. 97, 89 C.C.A. 97, 17 L.R.A. (N.S.) 1049, 15 Ann.Cas. 253, Judge Dayton said:

'But does this policy require secrecy as to the evidence adduced before the grand jury after such jury has made

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