White v. United States

• Decision Date: 09 February 1929
• Docket Number: No. 2305.,2305.
• Parties: WHITE v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

30 F.2d 590 (1929)

WHITE v. UNITED STATES.

No. 2305.

Circuit Court of Appeals, First Circuit.

February 9, 1929.

Asa S. Allen, of Boston Mass., and Samuel L. White, of Dorchester, Mass. (Allen & Steadman, of Boston, Mass., on the brief), for appellant.

John J. Walsh, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., and John V. Spaulding, Asst. U. S. Atty., both of Boston, Mass., on the brief), for the United States.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

JOHNSON, Circuit Judge.

The appellant, with four others, was indicted under section 37 of the Penal Code (18 USCA § 88) for conspiracy to commit the offense denounced by section 29b (1) of the Bankruptcy Act of July 1, 1898 (11 USCA § 52(b) (1), by aiding and abetting one Joseph Goredsky, a bankrupt, in concealing from his trustee in bankruptcy two Mack trucks.

Goredsky was a member of the partnership of J. Cushing Company, consisting of himself and one Joseph Cushing, engaged in the trucking business and located at Malden, in the commonwealth of Massachusetts.

An involuntary petition in bankruptcy was filed on March 23, 1925, in the District Court of Massachusetts against both partners and the copartnership. The two partners had not agreed, and on March 20, 1925, Goredsky took possession of the two Mack trucks and placed them in a garage. They had been up to this time in the possession of Cushing, the other partner. Proceedings had been commenced in the courts of Massachusetts, evidently to adjust partnership matters, and in these proceedings Elisha Greenhood represented Cushing as his attorney, and White, the appellant here, represented Goredsky, the other partner.

Possession of the trucks was taken by Goredsky by the advice of his attorney, and upon the day following their seizure Greenhood called upon White for an explanation, stating that a stipulation had been made in court that all of the property of the partnership should remain where it was and should not be disposed of. White denied that such a stipulation had been made, and claimed the right of Goredsky as a partner to take possession of the property and to sell the same, which he said had been done under his advice, but he did not give the name of the purchaser.

He was informed by Greenhood that a petition in bankruptcy against the partnership and the partners would be filed at once. This was done two days after this conversation, and on March 25, following, a subpœna to answer to the petition in bankruptcy was served upon Goredsky.

On March 26 a bill of sale of the trucks was given by Goredsky in the office of White to one Bromfield. This was drawn by White, who witnessed Goredsky's signature. It was dated March 21, 1925, and on the same date Bromfield gave to Goredsky a check, dated that day, for $3,000, drawn upon the Harvard Trust Company, of Cambridge, Mass.

Ernest F. Tilson, the auditor of the Harvard Trust Company, testified that this check was never cashed, but was canceled by the Trust Company on March 26, 1925; that there was no actual withdrawal of any cash; that the check was indorsed by Goredsky and deposited by Bromfield. He produced a ledger deposit card of the bank, showing Bromfield's deposits and withdrawals, which showed that on March 26, 1925, there was a withdrawal of $3,000 and a deposit of this amount.

On April 22, 1925, Bromfield sold the trucks to one Cahill, and then at different times paid to Goredsky $3,500, from which the appellant received, according to his testimony $610, although at a hearing before the referee in bankruptcy Goredsky testified that he paid him $1,200. White also received a check of $50 from Bromfield for services in acting as his attorney, as he alleges, in the sale of the trucks.

At the trial in the District Court the indictment was nol. prossed as to defendant Wyner, the defendant Bromfield retracted his plea of not guilty and pleaded guilty before verdict, and the jury returned a verdict of guilty against defendants Samuel L. White, George Gordon, and Joseph Goredsky. George Gordon was sentenced to serve a term of imprisonment, but the execution of the sentence was suspended, and the defendant placed upon probation; Bromfield was ordered to pay a fine of $1,000 and be imprisoned for the term of one year and one day, but the execution of this sentence was suspended, and he was placed on probation for a term of two years; Joseph Goredsky was sentenced to serve a term of imprisonment of 18 months in the house of correction; and the defendant Samuel L. White received a sentence of imprisonment in the United States penitentiary at Atlanta, Ga., for the term of two years. This appeal is prosecuted by him alone.

The errors assigned are, in substance, that the court erred in overruling the defendant's motion for a directed verdict, in receiving the testimony of defendant Goredsky in his examination before the referee in bankruptcy, and in refusing to give instructions requested and in instructions given.

The contention that a verdict should have been directed for the defendant is entirely without merit. There was abundant evidence, if believed by the jury, that the alleged sale of the trucks to Bromfield did not take place until March 26, 1925, and that it was then only a sham sale, intended to place the trucks in the possession of Bromfield to be sold for his benefit as well as that of Goredsky and White.

There was no error in admitting the testimony of defendant Goredsky before the referee in bankruptcy at the hearing upon adjudication, which included statements made and questions by the appellant White while he was acting in said examination as counsel for Goredsky. While the immunity granted by section 7 (9) of the Bankruptcy Act (11 USCA § 25(9) is applicable to the bankrupt, it does not render incompetent testimony in proceedings against others than himself....