Warren v. United States
| Decision Date | 07 October 1912 |
| Docket Number | 2,244. |
| Citation | 199 F. 753 |
| Parties | WARREN v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
W. B Grant and Chandler C. Luzenberg, both of New Orleans, La for plaintiff in error.
W. J Waguespack, Asst. U.S. Atty. (Charlton R. Beattie, U.S Atty., and Louis H. Burns, Asst. U.S. Atty., on the brief), for the United States.
Before McCORMICK and SHELBY, Circuit Judges, and MAXEY, District judge.
On November 18, 1908, the plaintiff in error-- hereafter called the defendant-- filed his voluntary petition in bankruptcy and his sworn schedule of assets and liabilities, and was adjudged a bankrupt. On December 9, 1908, William C. Lovejoy was qualified as trustee of his estate. The indictment was found on December 18, 1909, more than 12 months after the filing of the petition and schedules and the adjudication, and more than 12 months after the appointment of the trustee. The indictment in due form charges a violation of section 29b (1) of the Bankruptcy Act of 1898-- that the defendant, 'on or about the 10th day of January, 1909, and continuously thereafter * * * knowingly, willfully, and fraudulently concealed' from the trustee 50 tons of commercial fertilizer, wire fencing, and other described assets of the bankrupt's estate.
The evidence as to the defendant's acts in reference to the property all relate to a period prior to his filing his petition in bankruptcy, and, therefore, to a period more than 12 months before the finding of the indictment. It was in September or October, 1908, that the defendant disposed of the fertilizer and barbed wire under circumstances that the government contends constituted concealment. After selling the property-- fairly, as he claims; fraudulently, as the government contends-- he did nothing else whatever in reference to it. More than 12 months before the indictment was found he did the things relied on as constituting concealment. Within the 12 months before the indictment he did nothing but remain passive and silent. He did not schedule the alleged concealed property, but the schedules omitting it were filed more than 12 months before the indictment.
On these undisputed facts the defendant claims that the charge is barred by the provision of the statute that--
'a person shall not be prosecuted for any offense arising under this act unless the indictment is found or the information is filed in court within one year after the commission of the offense. ' Bankruptcy Act of 1908, Sec. 29d.
The contention of the defendant is that the record, without dispute, shows that the date of the indictment-- December 18, 1909-- was more than 12 months 'after the commission of the offense,' if any offense was committed, because all of the acts of the defendant in reference to the property were performed more than 12 months before the indictment. The United States attorneys, in the forcible argument presented for the government, contend that the offense charged is a continuing offense, and that the statute of limitations does not begin to run until the termination of the concealment 'or until the bankrupt has abandoned his effort to conceal the property'; that as long as he 'fails to notify the trustee of the whereabouts of the property, the concealment continues, and there is no statute of limitations to prevent the prosecution.' The correctness of this contention must be judged in connection with the facts disclosed by the record. The defendant made no 'efforts'-- that is, did nothing-- to conceal the property within 12 months before the indictment. The acts proved, relied on as concealment, were all of date more than 12 months before the indictment. The government's contention, therefore, must fall, unless the mere silence and passivity of the defendant after the alleged concealment makes the crime a continuing one, so that, to quote the brief, 'there is no statute of limitations to prevent the prosecution.' We cannot concede that such is the case. The government, to avoid the statute, should have begun the prosecution within 12 months after the commission of the acts constituting the offense.
If the contention of the government were correct, the statute of one year, while in terms it is made to apply to cases of concealing assets, would in practice seldom have any application. Twenty years after the appointment of the trustee the bankrupt could be prosecuted for concealing assets, and the government could prove that he had purchased certain goods shortly before bankruptcy, that such goods were not surrendered, and then, by proof of some circumstances from which the jury might determine that there had been concealment, have a case sufficient to go to the jury. Twenty years having elapsed, the defendant's witnesses might be gone or dead, and even his own memory might fail him in making a satisfactory explanation. When the trustee is appointed, he has title to the assets and should take possession. The creditors are interested that he should do so. The schedules show what property is surrendered by the bankrupt. If it is to be claimed that he has fraudulently and knowingly concealed a part of his estate, in fairness to...
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...v. Phillips, 2 Cir., 196 F. 574, it was held that the statute began to run from the demand of the trustee; in Warren v. United States, 5 Cir., 199 F. 753, 43 L.R.A.,N.S., 278, where the physical act of concealing took place before filing of petition, it was held that the statute began to ru......
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