September 30, 1935
UNITED STATES (TWO CASES)
DAVIS, Circuit Judge.
This case is here on reargument. The appellants, Benjamin Kutler and Samuel Kutler, were jointly indicted in the first count with Herman A. Rovner, for conspiring to conceal assets, merchandise, goods, and wares, etc., belonging to the bankrupt estate of Herman Rovner & Sons, "from the said John M. Hill, Esq., receiver," etc.
They were indicted in the second count for conspiring "to conceal cash to the amount of $38,000 and upwards (the exact amount being to the Grand Inquest unknown), from the said Receiver in Bankruptcy, John M. Hill, Esq.,"
The fact is that it was not John M. Hill but Milton Bennett who was the receiver of the estate of Herman Rovner. John M. Hill was and is the referee in bankruptcy. It is a crime to conceal assets from a receiver in bankruptcy, but it is not a crime to conceal them from the referee, to whom the case has been referred by the district judge, for the referee has not right to the assets. The receiver during the time he acts as such is the legal owner of the assets and has a right to their possession. Consequently the concealment from him is a crime, but the charge that the defendants conspired to conceal assets from John M. Hill who was not the receiver, though erroneously so called, was not a crime. Until 1926, it was not a crime to conceal property of a bankrupt estate from a receiver, but the Congress in that year enlarged the number of persons from whom it was a crime to conceal assets by adding receivers, United States marshals, or other officers of the court charged with the control or custody of property to the list. John M. Hill, referee, was not an officer of the court charged with the control or custody of the property. Therefore, the indictment did not charge a crime and the defendants could not plea this conviction as a bar to a prosecution on another indictment charging them with conspiracy to conceal assets from Milton Bennett, receiver, etc.
The word "receiver" following the name of John M. Hill is in apposition with the name of Hill and defines his position or status. It is true in the recitative part of the indictment it is stated that Milton Bennett was appointed receiver of the estate of Herman Rovner, but the charging part of the indictment, in which it is charged that defendants, conspired to conceal assets of the bankrupt estate from John M. Hill, receiver, cannot be enlarged by the recitative part.
Where an essential word or clause is omitted from an indictment, such omission is fatal to the indictment, even though the court may know what was intended. Cannon v. State, 60 Ark. 564, 31 S.W. 150, 32 S.W. 128; State v. Graham, 49 La. Ann. 1524, 22 So. 807; State v. Daugherty, 30 Tex. 360; State v. Leach, 27 Vt. 317. A false description of a person, where such description is essential, constitutes a fatal variance. Burns v. People, 28 Colo. 84, 62 P. 840; State v. Leonard, 7 Mo. App. 571; People v. Hughes, 41 Cal. 234; Wharton's Criminal Evidence, vol. 1, § 101. Where there is an allegation which describes, defines, qualifies, or limits a matter material to be charged, it is taken as a descriptive averment, and the general rule is that it must be proved as laid, even though such particularlity of description was unnecessary. Trice v. State, 116 Ga. 602, 42 S.E. 1008; United States v. Howard, 26 Fed. Cas. 388, No. 15,403; State v. Lashus, 67 Me. 564; State v. Langley, 34 N.H. 529; Commonwealth v. Dejardin, 126 Mass. 46, 30 Am. Rep. 652. In the case at bar, the word "receiver" describes John M. Hill and such description was essential. It was accordingly necessary for the government to prove it, but the evidence showed that the description was false and the variance was fatal.
It follows that the judgment must be reversed.
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