Rosenthal v. United States

248 F. 684, 160 C.C.A. 584, 1918 U.S. App. LEXIS 1464

• Court: Court of Appeals for the Eighth Circuit
• Decided: February 23, 1918
• Docket: No. 4888
• Status: Published

Opinion

TRIEBER, District Judge.

[1] The defendant, plaintiff in error, was indicted in two counts for false swearing, in a proceeding in bankruptcy, before the referee in bankruptcy. Each of the counts is for the same alleged offense; one count being evidently drawn under section 29b(2) of the Bankruptcy Act, and the other under section 125 of the Penal Coder There can only be one prosecution and conviction for one offense, and Congress undoubtedly was of the ppinion that false swearing in bankruptcy proceedings is not equal in enormity to the crime of perjury, as the punishment for false swearing in a proceeding in bankruptcy is less severe, and the time within which the prosecution must be instituted two years less than that for the crime of perjury under section 125 of the Penal Code., It was so held in Wechsler v. United States, 158 Fed. 579, 86 C. C. A. 37; Kahn v. United States, 214 Fed. 54, 130 C. C. A. 494; Ulmer v. United States, 219 Fed. 641, 134 C. C. A. 127. We therefore hold that the defendant could only be prosecuted under section 29b(2) of the Bankruptcy Act, and not under section 125 of the Penal Code.

[2] Section 29d of the Bankruptcy Act provides:

“A person shall not be prosecuted for any offense arising under this act unless the indictment is £ound or the information is filed in court within one year after the commission of the offense.”

A careful examination of the record fails to show any evidence whatever when the alleged false testimony was given by the defendant. The only reference to the date of defendant’s testimony before the referee was in a colloquy with the court, as follows:

“The Court: I am asking the que!?..ion as to whether it is admitted or denied that he testified (meaning the defendant).

“Mr. Robert (counsel for defendant): We deny that he testified in any proceeding before Referee Coles.

“The Court: I think your record shows that he testified on the 29th day of July, 1915.

“Mr. Oliver (U. S. Attorney): It saj s the oath was administered to him and he gave testimony.

“The Court: 29th day of July, 1915, testified, stands on proof.”

This was not admitted by counsel for defendant; therefore the only proof as to the date of the commission of the alleged offense was the unsupported statement of the district attorney. This was clearly not evidence, and, as the plea of “not guilty” was a denial of every material allegation in the indictment, the failure to prove by competent evidence that the alleged offense was committed within one year prior to the finding of the indictment is fatal, and necessitates a reversal.

[3] Another error committed was the admission of the testimony of Dipschitz, the main witness for the government, without whose testimony there was practically no evidence to justify a verdict of guilty. While, in view of his tesumony, as given before the referee, it was proper to permit him to be examined as a hostile witness, and as one whose testimony at the triad was a surprise to the government, it was improper to read to him all of his testimony before the referee, by way of cross-examination, and ask him, as every question and answer was read before the jury, “Did you not on the former occasion testify as follows?” This was not for the purpose of refreshing his memory, but was in fact introducing his testimony, in an examination before the referee under section 21 of the Bankruptcy Act (Comp. St. 1916, § 9605). This was error. Commonwealth v. Jeffs, 132 Mass. 5; Chamberlayne on the Modern Law of Ev. § 3507.

For the errors indicated, the judgment of the court below is reversed, with directions to grant a new trial.

SMITH, Circuit Judge, dissents.