The opinion of the court was delivered by: WILLSON
Defendant, William E. Mathies, Jr., has been indicted at Criminal Action No. 62-1 for violation of Section 152 of Title 18 United States Code, this indictment containing seven counts. In a second indictment, Criminal Action No. 62-2, the same defendant and his wife, Marion M. Mathies, have been charged with conspiracy to violate the same section of the bankruptcy act in a one count indictment which contains some 110 overt acts. Motions to dismiss in both indictments have been filed. Counsel have been heard at oral argument and briefs considered.
SUBSTANTIVE OFFENSE AT CRIMINAL ACTION NO. 62-1
The first two counts in this indictment charge concealment of assets in contemplation of bankruptcy. In the remaining five counts, defendant is charged with giving false oaths in relation to the bankruptcy proceedings. Defendant raises two issues in his motion for dismissal.
1. The indictment fails to set forth facts sufficient to constitute an offense against the United States in that it fails to adequately identify the property allegedly concealed and fails to state when, how, in what manner and under what circumstances the alleged concealment of property occurred.
2. The allegations of the indictment fail to plead essential facts and merely allege legal conclusions from which defendant is unable to properly prepare a defense.
The government in its brief indicates that Counts 1 and 2 were drawn pursuant to the 6th paragraph of Section 152. That paragraph reads:
'Whoever, while an agent or officer of any person or corporation, and in contemplation of a bankruptcy proceeding by or against such person or corporation, or with intent to defeat the bankruptcy law, knowingly and fraudulently transfers or conceals any of the property of such person or corporation * * *.'
The first paragraph of the indictment recites the involuntary bankruptcy proceedings filed against Pitt Wholesale Company, Inc., which was adjudicated a bankrupt on February 23, 1960, and thereafter the case was referred to the Referee for further proceedings. The second paragraph alleges that on or about the first day of January, 1958, and continuing thereafter up to and including the time of the finding of this indictment, in this jurisdiction defendant as president of the said Pitt Wholesale Company, inc.,
'in contemplation of the said bankruptcy proceeding by and against the said Pitt Wholesale Company, Inc., and with intent to defeat the bankruptcy law, did knowingly and fraudulently conceal and cause to be concealed certain property, to wit, merchandise and the proceeds thereof consisting of that merchandise commonly sold in a self-service department store, commonly sold by Pitt Wholesale Company, Inc. and intended for sale by the Pitt Wholesale Company, Inc. of the approximate value of $ 200,000 belonging to the said Pitt Wholesale Company, Inc.'
The second count realleges paragraph one of Count 1 and then says that during the period from March 1, 1959 to and including the first day of October, 1959, defendant did knowingly and fraudulently with intent to defeat the bankruptcy law conceal and cause to be concealed certain property, that is
'Merchandise and the proceeds thereof consisting of that merchandise commonly sold in a selfservice department store, commonly sold by Pitt Wholesale Company, Inc. and intended for sale by the Pitt Wholesale Company, Inc. of the approximate value of $ 5,000.00 belonging to the said Pitt Wholesale Company, Inc.'
The Rules of Criminal Procedure, adopted in 1945, govern the practice in the Federal criminal courts. Rule 7 is headed 'THE INDICTMENT AND THE INFORMATION'. Rule 7(c) is subheaded 'Nature and Contents.' It states that the indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. The point at issue here is whether the essential facts of the alleged offense are charged as required by the Rule and the decisions. The older decisions of the courts on this subject are not to be disregarded because it is believed that the rule is the expression of what the law always has been on the preparation of an indictment. No better summary is found than that in the decision of Rudin v. United States, 254 F.2d 45, 48, (6 Cir. 1958) where the court stated:
'It is, course, settled law that in order for an indictment to be valid it must allege all of the elements which are necessary to constitute a violation of the statute. But it is not necessary that the indictment follow the exact wording of the statute. * * * The test of the sufficiency of an indictment is that it must sufficiently apprise the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, that the record show with accuracy to what extent, he may plead a former acquittal or conviction.'