United States v. Freed

179 F. 236, 1910 U.S. App. LEXIS 5409

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: April 23, 1910
• Status: Published

Opinion

HAND, District Judge.

This being upon demurrer and motion to quash, I may consider only the ‘indictment. The allegation is that a petition was filed against “a corporation created by and existing under the laws of the state of New York,” whose name-is stated to have'been “Suffolk Boarding & Livery Stable.” There is no judicial presumption that the corporate name of a corporation denotes what is the business in which it is “engaged principally.” Bankr. Act July 1, 1898, c. 541, § 4b, 30 Stat. 547 (U. S. Comp. St. 1901, p. 3423). For aught that appears, the corporation may have been engaged principally in selling horses, and have done a livery stable business as a mere incident. Such ■a possibility is not even unlikely in fact.

Thus nothing contradicts the jurisdiction of the District Court. On the other hand, there is no necessity, in order to show the jurisdiction of the District Court, that the record should negative the exceptions of the statute, alleging that the corporation was in fact engaged principally in one of the occupations mentioned in section 4b. It was enough that the District .Court, being a court of limited, but not inferior, jurisdiction, was there concerned “to adjudicate persons bankrupts.” Section 2, subd. 1. That gave it jurisdiction, which cannot be attacked collaterally. Edelstein v. U. S., 149 Fed. 636, 79 C. C. A. 328, 9 L. R. A. (N. S.) 236.

It is not necessary, therefore, to decide upon the point of the jurisdiction of the District Court in case it should on the trial appear that the petition in bankruptcy actually alleged that the corporation was principally engaged in keeping a livery stable.

As to the failure to allege the actual facts, and not merely that the defendants’- testimony in the perjury indictments was false, and that they believed it to be false, there is doubtless authority for the rule which would make the indictments invalid. The practice in this district has been the other way, and on principle it is clear enough that the practice is right, for the requirement is of the allegation of evidence. If the practice is to be changed, the Circuit Court of Appeals must change it.

The' other points are not good. The examination was pertinent to the inquiries, and was so alleged. The crime of concealing assets could be committed by a corporation, and Freed could be indicted for the offense, if he participated in its commission. Cohen v. U. S., 157 Fed. 651, 85 C. C. A. 113; U. S. v. Young & Holland Co. (C. C.) 170 Fed. 110. Those were cases of conspiracy; but, if one may be guilty of conspiring to commit an act, it* cannot be that he is not guilty if the conspiracy is accomplished. I do not regard Field v. U. S., 137 Fed. 6, 69 C. C. A. 568, as binding, after Cohen v. U. S., supra.

Demurrers overruled, and motions denied.