The Portland daily press., 1879-02-04
The Conspiracy Case.
THE MOTION IN ARREST OF JUDO.
mENT FOR A NEW TRIAL OVER.
RULED.



ment, they have filed motion in arrest of
Judgment thereon.
The federal courts have not jurisdiction to
punish offences against the United States,
which have not been previously defined and a
specific punishment affixed by some statute
of the United States. The crime must be so
declared by act of Congress, and jurisdiction
conferred on the court, and such statutes
should not be extended by Judicial con-
struction, to cases not clearly and unmistak-
ably within the provisions of the act.
Interpreting the averments found in the
sixth count, as they would be ordinarily I'M
derstood-giving the language of the count
its usual, customary meaning, are these de-
PENDANTS thereby charged with any offence
against the United Statess
After setting forth that Holland July 26,
1876, was person, respecting whom pro-
ceedings in bankruptcy had been commenced,
it is alleged "that Holland, with SWEET and
Leavitt, on July 26, conspired to commit an
offence against the United States, to wit:
that Holland, on August %, in said pro-
ceedings in bankruptcy in the district court
of the United States for the district of Maine,
should then and there attempt to account for
his property, by fictitious losses and expenses.
to wit. by then and there pretending that he,
the said Holland, had, on the Sd day of
July, 1876, received from SWEET and Leavitt
the sum of six thousand dollars as psrt of the
consideration of two promissory notes for the
sum of five thousand each, for which mort
gage was given by Holland to SWEET and Leavitt
to secure the payment thereof to them,
which mortgage bill of sale, contained certain
of his said Hollands goods and chattels, viz !:
certain wool and shoddy stock of the value
of thirteen thousand dollars, which mortgage
bill of sale bore date as of May 4, 1876, and
was then and there made by Holland and de-
livered to SWEET and Leavitt,the consideration
therein alleged being the sum of ten thou
sand dollars and also, that he, said Holland,
in said proceedings in bankruptcy in said
district court, at said Portland, should testi-
fy and pretend, that "said six thousand dol
lars had been felouiously stolen from him said
Holland. in Boston, July 4th, 1876. with in
tent to defraud Perkins & ais, creditors of
said Holland" 1t AYERS the six thousand dol
lars were not paid to Holland and were never
stolen from him, all of which the defendants
well knew, and that Holland in pursuance of
this conspiracy and to effect the object there
of, on August 26, did attempt to account for
his property, by fictitious losses by falsely
testifying and pretending, that said six thou
sand dollars were so paid to him by SWEET
and Leavitt, as a part of the consideration of
the notes, purporting to be secured by said
mortgage, and that the same was so stolen
from him.
Section $40, Revised Statutes of the
United States, declares that if two or more
persons conspire, either to commit an offence
against the United States or y
and one of such persons do any act to ef-
feet the object of the conspiracy. all the par
ties shall be liable, sc. The offence against the
United States, which these defendants are
charged with having conspired to COM
nit, is set forth in section 5I32, which enacts,
that every person against whom pro-
ceedings in bankruptcy are commenced,
who attempts to account for his property by
fictitious losses or expenses, shall be punished.
The principal objection to the sixth count is.
that the allegations therein contained, do not
set forth and describe the offence contem-
plated by sec. 5l32, and in the language of the
that it does not allege that Holland was the
owner or possessor of any property, for
which he attempted to account by fictitious
losses, or that he attempted to account for any
which was ever in existence; shat
the indictment is guilty of the absurdity of
charging that man can be guilty of keeping
his property from his assignee by pretending
to have and lose what he never had at ALL
The contention is, that as the count states he
never had the six thousand dollars, he, as
a matter of course, could never have lost it,
there could never be fictitious loss of this
property, nor could he under such circum-
stances be guilty of the offence of attempting
to account for his property by fictitious
loss. If to constitute the offence it is neces-
sary that the property which the bankrupt
claims to have lost, he should at some time
have actually owned, and if the only allega-
tons in the count had been, that not being
the owner of the six thousand dollars, he was
to pretend he had lost the same, it may pos
sbly be that this objection would have been
valid, and that one material averment in the
count would have been so repugnant to others
that the count would be bad. For reasons here
matter given, it is not necessary for any
definite ruling upon such an objection, bnt as
at present advised, the court is not without
doubt as to its validity.
While one can not actually lose that which
never existed, or which he never possessed or
owned, may it not be that under the bankrupt
law, when attempting to account for his
he may affirm that he had certain
property which had been stolen from him,
when in fact he never had the property. The
offence denounced by section 5l32 is not the
concealing by the bankrupt of his property
from his assignee, but it is an attempt to &C.
count for his property by fictitious loss.
What are the constituents of this crime under
section 1892 First, there must be the at
tempt by the bankrupt. to account for his
property. Does this require, that at some
previous time he should actually have owned
the property, or that he should assert his hav-
ing been the owner, and thereupon as his
property attempt to account for it, IT he
asserts that on certain day he had such and
such property, which he goes on and &C.
counts for as lost, is it or not, within the law,
an attempt to account by him for his proper
tys OF what matter is it whether he held an
absolute or contingent title. or whether he
had any interest in the property, provided he
accounts for it as his, and asserts that it was
his! Secondly, the alleged loss must be
fictitious, that is, there must not have been
any loss. Certainly this requirement is met,
as fully, when there was no property to lose,
as when it has actually been stolen from him.
The purpose of the bankrupt, by such false
statements, is to deceive and mislead his as
signee, or the court, and by pursuing this
course and asserting that he once had the
property, of which he had thus been de-
prived, he for the time, succeeds in accom-
plishing his object. This objection has been
presented by both of the learned counsel
with much force, and while it is by no means
free from doubt, my opinion is rather in
clined to the conclusion, that the offence des-
ignated, would be committed by bankrupt
if in attempting TO give an account of his
property, he declares that a portion of his
property consisted of certain articles which
had been stolen from him, when in fact he
never had such property.
The validity of this count, is not dependent
on the correctness of this construction of the
law, as other material averments are therein
contained, which entirely obviate the objec-
ton as here presented. The conspiracy there
in charged, is not simply that Holland, in
the course of the proceedings in bankruptcy
should attempt by fictitious loss, to account
for the six thousand dollars, which he neve,
had, but it is shat he, on the 25th day Of
August at Portland, in said proceedings in
bankruptcy, in the district court of the
United States for said district of Maine
should then and there attempt to account fol
his property, by fictitious losses and ex.
penses, to wit by then and there pretending
that he had on the Sd day of July A. D
1876, received from SWEET and Leavitt, thu
sum of six thousand dollars, as part of thu
consideration of two promissory notes, for thu
sum of five thousand dollars each, for which
mortgage was given by said Holland on Ger
tain wool, &c., of the value of thirteen thou
sapd dollars and also that in said nroceed