MILLER v. UNITED STATES, 277 F. 721

WOODS, Circuit Judge. The first count of the indictment, found October 16, 1920, charges M. I,. Hayes and A. li. Miller with conspiracy knowingly and fraudulently to conceal from the trustee of the bankrupt, Hayes, $2,500 in money, the property of Hayes. The specific overt acts charged were the concealment by Hayes, the delivery of the money by Hayes, and its reception by Miller with the fraudulent intention of both to cpnvert it to their own use, and the giving of false testimony by Miller before the referee in bankruptcy with respect to the transaction.

The second count charges the bankrupt, Hayes, with fraudulent concealment of the money from the trustee, and Miller with aiding, abetting, and. counseling him in the commission of the crime. Miller was tried separately and convicted on both counts. Error is assigned in the refusal to direct a verdict of acquittal, in the admission of testimony, in the instructions to the jury, and in refusal to arrest the judgment. Hayes was used as a witness by the government, and Miller testified on his own behalf. On vital points their testimony was in-direct conflict.

Miller was the attorney who made out and filed Hayes’ petition in bankruptcy on September 2, 1919. As to the source of the fund, Hayes testified that before the bankruptcy he borrowed about $6,000 from one Cudd on his bond and mortgage, and deposited, the money in the First National Bank of Gaffney. He agreed in writing with Cudd that the money should be used in building a house, and the account was kept in the name of “M. E.

Hayes, Trustee.” No written agreement with Cudd was introduced, and there is nothing to show that Cudd retained any control of the fund, or that Hayes had agreed to hold it as trustee for Cudd. Assuming that Hayes had made a valid promise to expend the money in the building of a house on the mortgaged land, the house, if built, would have been his property, subject to the mortgage. It was obvious, when bankruptcy intervened, that the money was the property of Hayes, and that Cudd would have no claim to it, in law or equity, until he had exhausted the land covered by his mortgage.

The duty of Hayes to include it in his

schedule and turn it over to the trustee in bankruptcy was therefore perfectly clear to the most ordinary understanding. The testimony of Hayes is undisputed that there was no special reason for depositing the money as trustee, that he considered the money his, and that he used it as he pleased. The proof was that Cudd hás never made any claim to the money. Hayes gives this account of the dealings of himself and Miller: “I employed Bir. A. H. Miller as my attorney when I went into bankruptcy. £ talked the matter over on Sunday before I filed the petition in-bankruptcy.

At that time I had less than $3,000 in the First National Bank. I did not make return of this money in my schedule. Bir. Bliller asked me what money I had. I told him what I had, and how I came in possession of it, and he said it would not be necessary to give that in my schedule. At that time my wife was sick in the hospital, and I needed some money to pay her bills and expenses, and that is why I did not give it in. I was advised by Mr. Miller not to. He advised me to give him the money, and X did. I turned over to him $2,500. I gave it to him by check. Mr. Miller assisted me to go into bankruptcy.

He was to take the money, and give it to me along as I needed it to pay expenses and my wife’s hospital bills. I asked him what he would charge me, and he said, ‘Well, I will make that satisfactory with you.’ I suppose that was to come out of the $2,500.” Hayes further testified that Miller had paid him for his own use about $700 of the fund, still holding about $1,800, which he had refused to pay over.

Miller met this testimony by his statement that he had cashed the check for $2,500 for Hayes, and paid him the money, before he knew of his insolvency or contemplated bankruptcy; that he did not put the money in the schedule, because Hayes told him it was a trust fund belonging to his wife; that he had none of it in his possession ; that the money paid to Hayes from time to time after the bankruptcy was money put in his hands by the father of Hayes for the purpose of aiding his son in his difficulties.

On the issues thus made the government, relied for corroboration of Hayes on letters from Miller to Hayes, deposit slip taken by Miller in his own name for the $2,500 check of Hayes, and evidence tending to show that this slip was turned over to Hayes by Miller after he had changed it so as to read, “Deposited by A. C. Miller for M. E. Hayes,” and had written at the bottom of it, “not subject to check except by M. L. Hayes,” and inconsistencies in the testimony of Miller on the trial and at the hearing before the referee in bankruptcy.

This statement is sufficient to show that there was no error in refusing to direct a verdict of acquittal for failure of evidence. The opinion of John T. Roddey that the alleged change in the deposit slip above set out was in the handwriting of Miller was properly admitted. Benedict v. Flanigan, 18 S. C. 506, 44 Am. Rep. 583; State v. Ezekiel, 33 S. C. 115, 11 S. E. 635; Tower v. Whip (W. Va.) 63 L. R. A. 937, note; Miller v. Shoe Co., 89 S. C. 530, 534, 72 S. E. 397, Ann. Cas. 1913B, 106.

The statute of limitations afforded no ground for direction of a verdict, even if the limitation of one year prescribed in the bankrupt statute be considered applicable to a conspiracy to commit an offense created by that statute. The offense of conspiracy was not completed, and therefore was not indictable until the commission of an overt act, and the statute did not begin to run until the last overt act done while the conspiracy was in existence. Brown v. Elliott, 225 U. S. 392, 401, 32 Sup. Ct. 812, 56 L. Ed. 1136.

If the conspiracy was formed, as the jury found it was, there was evidence of overt acts within 12 months before the finding of the indictment. When the unlawful agreement is proved, one who enters into it is held to remain in until he does some affirmative act of withdrawal. Hyde v. U. S., 225 U. S. 347, 369, 32 Sup. Ct. 793, 56 L. Ed. 1114, Ann. Cas. 1914A, 614, The testimony of Miller before the referee was not a withdrawal from the conspiracy, but a denial of its existence.

If, however, it had been a withdrawal, the conspiracy, if it ever existed, was then complete, and the indictment was within the statutory period. It is insisted there could be no finding of a conspiracy on the testimony of Hayes although corroborated, because he testified that he had never concealed his assets from the trustee in bankruptcy, and had never conspired to do so. Hayes had testified to every fact necessary to convict him and Miller of the offense charged, and his opinion that this did not constitute concealment and conspiracy, of course, was not controlling.

He testified to facts which constituted the offense, and thereby admitted his guilt. The District Judge instructed the jury explicitly that, although one is presumed to intend the natural consequences of his act, yet that they could not convict (1) if the fund received by Miller from Hayes was not the property of Hayes, but of his wife, or some one else; or (2) if Miller believed it to be the property of some one else, although it was in fact the property of Hayes.

Since Miller was the attorney of Hayes, this instruction meant that, if Miller honestly advised Hayes to turn over the fund to him, and not to the trustee, he could not be convicted. The additional instruction was given that advice of counsel may be considered on the issue of intent of Hayes, the other alleged conspirator.

The request to charge that action of Hayes on the advice of counsel honestly given would completely exonerate and eliminate Hayes, and thus defeat the charge of conspiracy, was properly refused, if for no other reason, because it did not express the additional requisite that Hayes must honestly have taken the advice and acted upon it. The general-rule is that advice of counsel is no excuse for violation of law. 8 R. C. L. 123; 16 C. J. 85.

But where the question, as in, this case, is one of intent, the advice and the good faith of the defendant is a defense to be considered by the jury. 12 Cyc. 156, and citations; State v. O’Neill, 147 Iowa, 513, 126 N. W. 454, 33 L. R. A. (N. S.) 788, Ann. Cas. 1912B, 691; Williamson v. U. S., 207 U. S. 425, 453, 28 Sup. Ct. 163, 52 L. Ed. 278. The jury was so instructed. The instruction was given that, if the fund involved was held by Hayes in trust for another, it was not a part of the bankrupt estate, and the defendant could not be convicted.

There was no error in refusing to repeat the instruction in the requests submitted on the subject. The trustee denied knowledge that the bankrupt was the owner of the fund, and there was no evidence to the contrary. The request on that subject was therefore inapplicable. The last error assigned is the refusal of the court to arrest or suspend judgment, on the ground that conviction of one of two defendants charged with conspiracy could not be the basis of judgment against him while the charge against the other was undisposed of. One of two defendants charged with conspiracy may be separately tried.

If one is acquitted, the other must be acquitted also, since he cannot commit the offense alone; and if the charge against one be nol. pros’d the other cannot afterwards be convicted, because there is no pending charge against two. State v. Jackson, 7 S. C. 283, 24 Am. Rep. 476; Feder v. U. S., 257 Fed. 694, 696, 168 C. C. A; 644, 5 A. L. R. 370. The rule that each of two persons charged with conspiracy may be tried separately negatives the proposition that judgment on the conviction of one must be arrested until the other is tried.

What would be the effect of a future acquittal of Hayes, or a nol. pros, of the indictment as to him, it is not our province at this time to decide. Affirmed.