Bernstein v. United States , 151 C.C.A. 657 ( 1916 )

WOODS, Circuit Judge.

The defendant, Samuel Bernstein, was convicted under an indictment charging violation of section 37 of the Criminal Code, in that he conspired with other defendants, Eipman and Eisenstein, to present and prove a false claim against A. Eisenstein, bankrupt, and that in pursuance of this conspiracy the defendant Eip-man did present the false claim under oath to the referee in bankruptcy before whom the proceeding was pending.

[1] The indictment charged both the conspiracy and the overt act in the city of Richmond. The proof was that the conspiracy was entered into in the city of Philadelphia, and that only the overt act of presenting and proving the false claim was committed in the city of Richmond. The argument is that this was a fatal variance, and that, therefore, the District Court for the Eastern District of Virginia should have directed an acquittal. The point is settled beyond dispute by Hyde v. United States, 225 U. S. 347, 32 Sup. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614, wherein the court held in effect that a conspiracy formed in California was to be considered extended into the District of Columbia, where the overt act in pursuance of it was committed.

[2] There is nothing in the point that there was a fatal variance, in that the indictment charges the presentation of a false claim in a bankruptcy proceeding, whereas the proof was of its presentation in a composition. Even if such a refined distinction be allowed, it cannot be doubted that presentation and proof of a claim for purposes of a composition is. presentation and proof -for all purposes in the bankruptcy proceedings.

Affirmed.

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