KALODNER, District Judge.
The defendant, Ernest Tatcher, is one of two partners indicted on a charge of concealing property of a bankrupt estate from the trustee.
This is the defendant's second trial. At the previous trial the defendant demurred to the evidence; the demurrer was overruled, and the defendant was adjudged guilty and sentenced to imprisonment. The United States Circuit Court of Appeals of this Circuit reversed the judgment ( Tatcher v. United States, 3 Cir., 107 F.2d 316) on the single ground that the government had not joined in the demurrer, and remanded the cause to the District Court with directions to order a new trial.
At the second trial, upon conclusion of the government's case, the defendant demurred; the government joined in the demurrer; and, in accordance with the procedure prescribed by the United States Circuit Court of Appeals in Tatcher v. United States, supra, I discharged the jury and the duty is now upon me to determine the innocence or guilt of the defendant.
The testimony discloses that the defendant and a partner, Raymond W. Blank -- trading as the Keystone Flat Glass Company -- were engaged in the glass business for several years prior to the filing of an involuntary petition in bankruptcy against the company on August 17, 1936. On August 19, 1936, one George Miller was appointed temporary receiver, and the appointment was made permanent on September 2, 1936. Tatcher and Blank were adjudicated bankrupts on September 9, 1936.On October 19, 1936, Miller was appointed trustee and thereafter duly qualified. The indictment against the defendant and his partner was found on August 31, 1938, and was based upon the alleged concealment of some $13,000 worth of merchandise and other property from the trustee in bankruptcy as of October 19, 1936.
The bankrupt estate listed assets in its schedules in the amount of $286 and the property thus listed was duly turned over to the receiver.
According to the testimony, the bankrupts had an inventory of $5,880.96 on January 1, 1936. It further appears that the bankrupts made purchases of merchandise of $16,062.47 between January 1, 1936 and the end of May, 1936, and that sales during this period totaled $9,039.37. There were no book or ledger records of purchases or sales after May, 1936.
As previously stated, merchandise on hand in September, 1936, was valued by the bankrupts' appraisers at $286, as listed in the bankrupts' schedules. There is no dispute as to this figure.
Analyzing briefly the situation presented by the foregoing, we find:
(1) That the purchases of $16,062.47
Exceeded sales of 9039.37
By $ 7,023.10
(2) That since the inventory on January 1,
1936 amounted to 5,880.96
The merchandise on hand at the
end of May, 1936 should have been $12,904.06
(3) That since the merchandise on hand
was only 286.00
There was a discrepancy in the
merchandise account of $12,618.06
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