Magen v. United States , 24 F.2d 325 ( 1928 )

AUGUSTUS N. HAND, Circuit Judge

(after stating the facts as above). The substance of the errors assigned is that:

(1) No proper allegation of the appointment of the special commissioner is found in the indictment; no such person as a special commissioner could be appointed to conduct a hearing under section 21a of the Bankruptey Act (11 USCA § 44), and he never took an oath to perform his duties.

(2) The indictment is bad for duplicity.

(3) The government failed to prove the offense charged, and especially failed to prove some of the assignments of perjury alleged.

(4) The remarks of the trial court were such as to deprive the defendant of a fair trial.

The contention that the allegation of the indictment that “Isaac F. Russell was appointed special commissioner in a hearing and examination held pursuant to the provisions of section 21a of the * * * Bankruptcy Act” is irregular, and states an impossibility, is so purely technical and fanciful that it can hardly be viewed seriously. An indictment is intended to inform a defendant of the eharge against him, so that he may be prepared to meet it. Is it possible that any one can doubt that the foregoing allegation means that Isaac F. Russell was appointed special commissioner in respect to a hearing under section 21a? The -clause may not be drafted in the best English, but it is clear enough. The defect, if .any, is in matter of form only, and should be disregarded. R. S. §' 1025 (18 USCA § 556). The point that a special commissioner could not be appointed to conduct the examination is unavailing. A special commissioner has long been authorized to act for the court in taking testimony under section 21a. United States v. Liberman (C. C.) 176 F. 161; In re Champion Tool Co. (C. C. A.) 4 F.(2d) 1000; Cameron v. United States, 231 U. S. page 710, 34 S. Ct. 244, 58 L. Ed. 448.

It is contended that a general order of reference, which is said to have been made here before the testimony of the defendant was taken, superseded the examination before the special commissioner, because of the language of General Order XII of the Supreme Court, which says that “ * * * thereafter all the proceedings, except such as are required by the act or by these General Orders to be had before the judge, shall be had before the referee.”

Certainly it is an extreme construction of this General Order to hold that proceedings pending under an order made before the reference shall be nullified by an order of reference. The purpose of General Order XII is to relieve the District Court in bankruptcy, and to set the limits to the powers of the referee’s court. In view of this evident purpose, it is thought that the General Order is not to be interpreted as depriving the District Court of original jurisdiction in such matters as may be brought before it. One can hardly suppose that the court, which has power to dispense with a referee altogether, cannot dispense with him in part, particularly in proceedings pending at "the time a general reference is ordered. Indeed, a court of distinguished judges said in the case of In re Sweeney (C. C. A.) 168 F. at page 614: “The bankruptcy proceeding may be referred to the referee by a general order, or to him as referee upon special issues, his power depending upon the order of reference.”

At most the matter was one of practice, and not of jurisdiction, and there is no proof of any attempt to vacate the order appointing the special commissioner, or of any objection to testifying before him. In re Nankin (C. C. A.) 246 F. 811.

As for the alleged failure of the special commissioner to take an oath, there was no statutory requirement that he should so qualify. Thompson v. Smith, Fed. Cas. No. 13,976; Street’s Fed. Eq. Pr. § 1396. See, also, Seamen v. Northwestern Mutual Life Ins. Co. (C. C. A.) 86 F. 493. Moreover, he seasonably signed an oath before a notary public, which is now on file. A notary is authorized to administer oaths under section 20 of the Bankruptcy Act (11 USCA § 43); Hardy v. United States (C. C. A.) 22 F.(2d) page 153.

The objection that the indictment is bad for duplicity is likewise untenable. The indictment alleges facts which constitute a crime. The reference to the two sections, under each of which the facts stated constituted a crime, is mere surplusage. The sufficiency of the pleading, so far as this objection goes, is settled by the authority of Hammer v. United States, 271 U. S. 620, 46 S. Ct. 603, 70 L. Ed. 1118.

It is said that the defendant never testified, as alleged in the indictment, that he did not sign any paper as a receipt for the $1,-038.46. The testimony of Mr. Shaine and some of the extracts read from the stenographer’s minutes on his cross-examination would have left this matter somewhat in doubt, but for the fact that the defendant said that he had never seen the receipt in his life. Such testimony was certainly a sufficient basis for a finding by the jury that the allegation of the indictment that .defendant testified “that he did not sign any paper as a receipt for such money” was established.

The objection is likewise unavailing that there was no basis for a finding that defendant’s testimony was untrue, when he said that he had not received the sum of $1,038.46 in payment for a quantity of merchandise sold by H. Magen Company, Ine., to Henry B. Friend. The defendant was the treasurer of the company and in control of its business. He had constantly sold other goods to Friend for the company. When he arranged the sale for $1,038.46, shortly before the bankruptcy, and the payment was made by cash, rather than by a check, as in all the other cases, the inference could well be drawn that the sale was of the bankrupt’s goods, and the method of conducting it was adapted to conceal the transaction. The government furnished ample proof to establish the commission of the crime.

In regard to the objection that the remarks of the trial court were such as to prevent a fair trial, we are not persuaded that the constant reiteration by the attorney of his complaints against the judge was not calculated to prejudice the court, rather than the attorney or his client. The attorney was allowed to bring out on cross-examination any facts he might reasonably desire, and he called no witness except a deputy clerk of the District Court, who merely gave some unimportant evidence as to the record in his office.

In other words, the proof of guilt was substantially uneontradicted and the reliance of the defense was on points of law rather than on the facts. To hold that a personal altercation, having no real relation to the merits of the litigation, causes a mistrial, would be to reward a defendant for the shortcomings of his lawyer in a ease where it is mere speculation to say he suffered any prejudice.

The judgment is affirmed.