United States v. Latorre

U.S. Circuit Court for the District of Southern New York

United States v. Latorre

26 F. Cas. 872, 8 Blatchf. 134, 1871 U.S. App. LEXIS 1818

CourtU.S. Circuit Court for the District of Southern New York

DecidedJanuary 5, 1871

StatusPublished

This text of 26 F. Cas. 872 (United States v. Latorre) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Latorre, 26 F. Cas. 872, 8 Blatchf. 134, 1871 U.S. App. LEXIS 1818 (circtsdny 1871).

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Opinion

BENEDICT, District Judge.

Many objections have been taken to the counts of this indictment, but I consider it necessary to pass upon only one of’them here; and that is, that a mere averment of the commencement of proceedings in bankruptcy, pursuant to the act. without in any way describing the proceedings, except by the names of the creditors, and the words, “pursuant to the act,” is insufficient. This objection, which is applicable to all the counts of the indictment, is fatal.

While it is conceded, that, in describing statutory offences, it is, in general, sufficient to follow the words of the statute, and it is equally true, that the strict rules held applicable to felonies are not applicable to those offences against the United States which are by law declared to be misdemeanors, it is none the less true, that an indictment for a misdemeanor must state an offence, and must convey to the accused the Information necessary to enable him to make his de-fence. The present indictment does not do that. It does not state a time, nor a place nor a tribunal before which the alleged proceedings in bankruptcy were taken, subsequent to which, and with reference to which, the accused made the alleged conveyance of his property. It neither alleges any adjudication or proceedings in bankruptcy before a court of competent jurisdiction, nor does it set forth any facts, from which the [873]*873court can see that any court had jurisdiction of the proceedings alluded to. The gist of the offence created by the 44th section of the bankrupt act, is a conveyance -with intent to keep property from an assignee in bankruptcy, and the offence cannot be committed unless proceedings in bankruptcy have been commenced in a court of competent jurisdiction, in which an assignee can be appointed; but this indictment fails to aver such proceedings. It does not even aver proceedings in any court. There might have been proceedings in bankruptcy commenced by the creditors named, against the accused, on more than one occasion, • and before more courts than one; but this indictment gives the accused no clue by which to determine with reference to which proceedings the charge of fraudulent conveyance is made. For this reason, therefore, I am of the opinion that the indictment is deficient and must be quashed.

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BENEDICT, District Judge.

Many objections have been taken to the counts of this indictment, but I consider it necessary to pass upon only one of’them here; and that is, that a mere averment of the commencement of proceedings in bankruptcy, pursuant to the act. without in any way describing the proceedings, except by the names of the creditors, and the words, “pursuant to the act,” is insufficient. This objection, which is applicable to all the counts of the indictment, is fatal.

While it is conceded, that, in describing statutory offences, it is, in general, sufficient to follow the words of the statute, and it is equally true, that the strict rules held applicable to felonies are not applicable to those offences against the United States which are by law declared to be misdemeanors, it is none the less true, that an indictment for a misdemeanor must state an offence, and must convey to the accused the Information necessary to enable him to make his de-fence. The present indictment does not do that. It does not state a time, nor a place nor a tribunal before which the alleged proceedings in bankruptcy were taken, subsequent to which, and with reference to which, the accused made the alleged conveyance of his property. It neither alleges any adjudication or proceedings in bankruptcy before a court of competent jurisdiction, nor does it set forth any facts, from which the [873]*873court can see that any court had jurisdiction of the proceedings alluded to. The gist of the offence created by the 44th section of the bankrupt act, is a conveyance -with intent to keep property from an assignee in bankruptcy, and the offence cannot be committed unless proceedings in bankruptcy have been commenced in a court of competent jurisdiction, in which an assignee can be appointed; but this indictment fails to aver such proceedings. It does not even aver proceedings in any court. There might have been proceedings in bankruptcy commenced by the creditors named, against the accused, on more than one occasion, • and before more courts than one; but this indictment gives the accused no clue by which to determine with reference to which proceedings the charge of fraudulent conveyance is made. For this reason, therefore, I am of the opinion that the indictment is deficient and must be quashed.

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Bluebook (online)

26 F. Cas. 872, 8 Blatchf. 134, 1871 U.S. App. LEXIS 1818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-latorre-circtsdny-1871.