$ 2322 CRIMES AGAINST THE BANKRUPTCY ACT. "belonging to his estate in bankruptcy." 20 Nor is it necessary to allege that the bankrupt knew of the appointment. of a trustee of his estate. 21 The allegation that the trustee was "duly" appointed and qualified is sufficient, at least on review.22 Where the act charged is a conspiracy to conceal assets in contemplation of subsequent bankruptcy, it has been held that the appointment of a trustee need not be alleged. Radin v. United States, 25 A. B. R. 640, 189 Fed. 568 (C. C. A. N. Y.): This court has held that the statute applies to a conspiracy formed in contemplation of bankruptcy (Cohen v. U. S., 19 A. B. R. 8, 157 Fed. 651; see also, Alkon v. U. S., 22 A. B. R. 489, 163 Fed. 810). An indictment charging such a conspiracy does not and cannot contain an averment that a trustee was appointed when none has been appointed. It is a familiar rule that the pleadings must conform to the facts and the proof to the pleadings. If the appointment of a trustee be an essential ingredient of the offense it is necessary to allege it, and this is impossible where none has been appointed. If, on the other hand, a trustee be subsequently appointed, proof of the fact might successfully be prevented on the ground that nothing of the kind is alleged. What, then, is to be done with a case where the proof shows that a conspiracy was formed before bankruptcy, but in contemplation thereof, and its members were so successful in doing acts to effect the object of the conspiracy that nothing of the banker's estate is left for his creditors? "No reason exists for a trustee in such circumstances. He might be appointed, it is true, but it would be a vain act; as well might an administrator be appointed for a deceased person who has left nothing but debts. From a practical viewpoint the existence of the trustees in no way affects the guilt or innocence of the conspirators. His appointment is not an ingredient of the crime which relates to a conspiracy to conceal the goods so effectually that no trustee will ever be needed. *** We are, however, of the opinion that it was not essential in the case at bar the indictment should allege or the proof show that a trustee was actually appointed." § 2322. Indictment for "False Oath" or "Concealment of Asɛets" to Aver Falsity and Scienter. The indictment for a false oath must aver not only knowledge of the falsity but also must directly aver the falsity itself.23 And the indictment for concealment of assets is fatally defective if it fail to characterize the concealment as having been done "knowingly and fraudulently," in the very words themselves or equivalent words.24 So also 20. United States v. Comstock, 20 A. B. R. 520, 161 Fed. 644 (D. C. Mass.). 21. United States v. Comstock, 20 A. B. R. 520, 161 Fed. 644 (D. C. Mass.). 22. Kerrch v. United States, 22 A. B. R. 544, 171 Fed. 366 (C. C. A. Mass.). 23. Bartlett v. United States, 5 A. B. R. 678, 105 Fed. 884 (C. C. A. Mont.). Compare, as to when scienter sufficiently averred, McNiel 7'. United State, 18 A. B. R. 21, 150 Fed. 82 (C. C. A. Tex.). Compare, United States v. Freed, 25 A. B. R. 89, 179 Fed. 236 (D. C. N. Y.). Instance of sufficient allegation of falsity. Daniels v. United States, 27 A. B. R. 790, 196 Fed. 459 (C. C. A. Ohio). However, compare, Kovoloff v. United States, 28 A. B. R. 767, 202 Fed. 475 (C. C. A. Ill.). 24. United States v. Comstock, 20 A. B. R. 520, 161 Fed. 644 (D. C. Mass.). with an indictment for conspiracy to conceal. United States v. Comstock, 20 A. B. R. 525, 161 Fed. 644 (D. C. R. I.): “The words 'knowingly and fraudulently' are an essential part of the statute, and describe an essential ingredient of the offense. The omission of these words, or any equivalent, is in my opinion, fatal on demurrer." It need not be alleged to have been done "willfully," however, the word "conceal" itself plainly excluding unintentional acts. United States v. Comstock, 20 A. B. R. 520, 161 Fed. 644 (D. C. Mass.): "The indictment uses the words 'unlawfully, knowingly and fraudulently' to characterize the word 'conceal.' Upon demurrer, it is contended that no wrongful intent is sufficiently charged by these words. The terms of the statute, however, are themselves inconsistent with an honest or lawful purpose, and set forth all the elements of the offense. In such case it is sufficient to charge the offense in the terms of the statute. The defendant assigns as cause of demurrer the omission of the word 'wilfully.' The language of the statute used in the indictment is the substantial equivalent of a charge that the defendant did wilfully conceal. Bullis v. O'Beirne, 195 U. S. 606-617, 13 Am. B. R. 108. *** The term 'conceal,' itself a word of plain interpretation (United States v. 350 Chests of Tea, 12 Wheat. 493, 6 L. Ed. 702), when coupled with the words 'unlawfully, knowingly, and fraudulently,' plainly excludes unintentional acts. The word 'conceal' according to Bankruptcy Act, § 1 (22) shall include 'secrete, falsify, and mutilate.'" § 2323. Schedules of Bankrupt Used in Criminal Proceedings.— Under the protection of U. S. Rev. Stat., § 860, it was forbidden to use the schedules in any criminal proceedings against the bankrupt.25 However, since the repeal of this statute 26 and inasmuch as the United 25. Jacobs v. United States, 20 A. B. R. 550, 161 Fed. 694 (C. C. A.); Johnson v. United States, 20 A. B. R. 724, 163 Fed. 30 (C. C. A. Mass.); Cohen v. United States, 22 A. B. R. 333, 170 Fed. 715 (C. C. A. S. C.). Compare, Johnson v. United States, 22 A. B. R. 359, 170 Fed. 581 (C. C. A. Mass.). 26. Congress in 1910 repealed § 860 of the Revised Statutes of the United States, which section is frequently involved in the discussions as to the immunity of the bankrupt from the use of his schedules, testimony, etc., given in bankruptcy proceedings. See Report of Senate Judiciary Committee No. 502, 61st Congress, Second Session: "Section 860, which the bill proposes to repeal, reads as follows: 'No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture: Provided, That this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as aforesaid.' This section was enacted apparently for the purpose of enabling the government to compel the disclosure of incriminating testimony on condition that the witness disclosing the same would be given immunity In the case of Counselman v. Hitchcock (142 U. S. 547) it was held that legislation can not abridge a constitutional privilege, and that it can not replace or supply one, at least unless it is so broad as to have the same extent in scope and effect, and that said § 860of the Revised Statutes does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is not a full substitute for that prohibition, and that in view of the constitutional provision (article 5 of the amendments) a statutory enactment to be valid must afford absolute immunity against future prosecution for the offense to which the question relates." "Since the decision above referred to § 860 has possessed no usefulness what States Supreme Court has held that § 7 (9) does not protect the bankrupt from the use of his schedules, books, documents, etc., these may now be used against him in a criminal prosecution.27 Ensign v. Commonwealth of Pennsylvania, 227 U. S. 592, 30 A. B. R. 408: "The reliance of the plaintiffs in error, of course, is upon that part of clause of the section which declares: 'but no testimony given by him shall be offered in evidence against him in any criminal proceeding.' "It is insisted that, in accordance with the spirit of the Fifth Amendment, this should be construed as applying to the schedule required to be prepared, sworn to, and filed by the bankrupt under the provisions of the 8th clause. But as a matter of mere interpretation, we deem it clear that it is only the testimony given upon the examination of the bankrupt under clause 9 that is prohibited from being offered in evidence against him in criminal proceeding. The schedule referred to in the 8th clause, and the oath of the bankrupt verifying it, are to be 'filed in court' and, therefore, are, of course, to be in writing. The word 'testimony' more properly refers to oral evidence. It was reasonable for Congress to make a distinction between the schedule, which may presumably be prepared at leisure and scrutinized by the bankrupt with care before he verifies it, and the testimony that he is to give when he submits to an examination at a meeting of creditors or at other times pursuant to the order of the court-a proceeding more or less unfriendly and inquisitorial, as well as summary, and in which it may be presumed that even an honest bankrupt might, through confusion or want of caution, be betrayed into making admissions that he would not deliberately make. Full effect can be given to the cause, 'but no testimony given by him shall be offered in evidence against him in any criminal proceeding,' by confining it to the testimony given under clause 9, to which the words in question are immediately subjoined. And, we think that proper interpretation requires their effect to be thus limited." ever, but has remained in the law as an impediment to the course of justice. Under it a witness can not be compelled to give any incriminating testimony whatever, but if he chooses to go on the witness stand and testify as to any matter whatever, even of his own volition, and, whether incriminatory or not, his testimony can not thereafter be brought up against him in any criminal proceedings. He can not be confronted with his own testimony or his own previous statement under oath even on cross-examination. The statute has become a shield to the criminal and an obstruction to justice. The bill has the approval of the Attorney-General, as will appear by a quotation from pages 22 and 23 of his annual report for the year 1909, which reads as follows: 'In the enactment of this section it was the apparent intention of Congress to create a law which would enable prosecutors to give immunity to witnesses who were compelled to testify against themselves, but the Supreme Court, in the case of Counselman v. Hitchcock (142 U. S. 547), held that this section As was no substitute for the constitutional 27. See ante, § 1556, et seq. § 2324. Immunity from Use of Bankrupt's Testimony.-No testimony given by the bankrupt may be offered in evidence against him in any criminal proceedings.28 Nor can such immunity be evaded by reading from the record of the testimony 29 even though on cross examination of a bankrupt who had voluntarily offered himself as a witness.30 And, in general, indirect methods of getting the bankrupt's examination into evidence are forbidden.31 The immunity afforded by § 7 (9), however, is confined solely to the "testimony" given upon the examination authorized by this subdivision of § 7, and does not include immunity from the use of his schedules, books, documents, etc.32 Ensign v. Commonwealth of Pa., 227 U. S. 592, 30 A. B. R. 406: "For the reasons given, it seems to us clear that the plaintiffs in error were not entitled to have the bankruptcy schedules excluded from evidence, because those schedules were not within the description of 'testimony' in the clause quoted from section 7 of the Bankruptcy Act. "And for like reasons, the evidence showing the results of an expert examination of the books of the bankers was also admissible. This conclusion renders it unnecessary for us to consider whether the prohibition with which we have dealt, that no testimony given by him shall be offered in evidence against him in any criminal proceeding' is not limited to criminal proceedings in the Federal courts; and upon this.question we express no opinion." For a long time it was doubted whether the statutory immunity of $7 (9) from the use as evidence in any criminal proceedings of the bankrupt's testimony before the referee was not an effective obstacle to any conviction for swearing falsely before the referee, some courts holding the provision was inclusive and covered immunity from the prosecution for falseness of the testimony itself, while other courts held that immunity. extended simply to prosecution for any actual crime revealed by the testimony.3 33 However, the matter has been definitely set at rest by the Supreme Court of the United States, to the effect that the immunity afforded by § 7 (9) is not applicable to a prosecution for perjury committed by the bankrupt when examined under it.34 Glickstein v. United States, 222 U. S. 139, 27 A. B. R. 786: "When the legality of a conviction and sentence of Glickstein was before the court below, as the 28. Bankr. Act, § 7 (9): "No testimony given by the bankrupt shall be offered in evidence against him in any criminal proceedings." See ante, § 1556, et seq. Trustee testifying never learned whereabouts of assets from bankrupt but discovered them without bankrupt's assistance. Johnson v. U. S., 22 A. B. R. 359, 170 Fed. 581 (C. C. A. Mass.). 29. Jacobs v. United States, 20 A. B. R. 550, 161 Fed. 694 (C. C. A. Mass.). 30. Jacobs v. United States, 20 A. B. R. 550, 161 Fed. 694 (C. C. A. Mass.). 31. Jacobs v. United States, 20 A. B. R. 550, 161 Fed. 694 (C. C. A.); obiter, Johnson v. United States, 22 A. B. R. 359, 170 Fed. 581 (C. C. A. Mass.); compare, to same effect as to witness, Alkon v. United States, 22 A. B. R. 489, 163 Fed. 810 (C. C. A. Mass.). 32. See ante, § 1556; a fortiori, Kerrch v. United States, 22 A. B. R. 544, 171 Fed. 366 (C. C. A. Mass.). 33. See ante, §§ 1556 and 15561⁄2. 34. Wechsler v. United States, 19 A. B. R. 1, 158 Fed. 579 (C. C. A. N. Y.); In re Kaplan Bros., 32 A. B. R. 305, Fed. (C. C. A. Pa.). result of error prosecuted by him, the court, stating the facts which we have recited, certified the following question: 'Is subsec. 9 and the immunity afforded by it applicable to a prosecution for perjury committed by the bankrupt when examined under it?' "With these propositions in hand, it follows that the precise question for decision is, Did the guaranty of immunity contained in the 9th subdivision of § 7 of the Bankruptcy Act bar a prosecution for perjury for false swearing in giving testimony under the command of the section? In other words, the sole question is, Does the statute, in compelling the giving of testimony, confer an immunity wider than that guaranteed by the Constitution? The argument to maintain that it does is that, as the statute provides for immunity, and does not contain the reservation found in either Rev. Stat., § 860, or that embodied in the Act of 1893, therefore, under the rule that the inclusion of one is the exclusion of the other, such reservation can not be implied. Or, to state the proposition in another form, it is that as the statute in the immunity clause says: 'But no testimony given by him (the witness who is compelled to be examined) shall be offered in evidence against him in any criminal proceeding,' and as these words are unambiguous, there is no room for limiting the language so as to cause the immunity provision not to prohibit the offer of the testimony in a criminal prosecution for perjury. But the contention assumes the question for decision, since it excludes the possibility of construction when, on the face of the statute the meaning attributed to the immunity clause can not be given to it without destroying the words of the statute and frustrating its obvious object and intent. This may not be denied, since the statute expressly commands the giving of testimony, and its manifest purpose is to secure truthful testimony, while the limited and exclusive meaning which the contention attributes to the immunity clause would cause the section to be a mere license to commit perjury, and hence not to command the giving of testimony in the true sense of the word. "The argument that because the section does not contain an expression of the reservation of a right to prosecute for perjury in harmony with the reservations in Rev. Stat. § 860, and the Act of 1893, therefore, it is to be presumed that it was intended that no such right should exist, we think, simply begs the question for decision, since it is impossible in reason to conceive that Congress commanded the giving of testimony, and at the same time intended that false testimony might be given with impunity, in the absence of the most express and specific command to that effect. Bearing in mind the subject dealt with, we think the reservation of the right to prosecute for perjury, made in the statutes to which we have referred, was but the manifestation of abundant caution; and hence, the absence of such reservation in the statute under consideration may not be taken as indicative of an intention on the part of Congress that perjury might be committed at pleas ure. "Some of the considerations which we have pointed out were accurately expounded in Edelstein v. United States, 17 Am. B. R. 649, 149 Fed. 636, L. R. A. (N. S.) 236, 79 C. C. A. 328, by the Circuit Court of Appeals for the eighth circuit, and in Wechsler v. United States, 19 A. B. R. 1, 158 Fed. 579, 86 C. C. A. 37, by the Circuit Court of Appeals for the second circuit. And this leads us to observe that the necessary result of the conclusion now reached is to disapprove the opinions in Re Marx (D. C. Ky.), 4 A. B. R. 521, 102 Fed. 676, and Re Logan (D. C. Ky.), 4 A. B. R. 525, 102 Fed. 876. "It follows that the question propounded must receive a negative answer, and our order will be, question certified answered 'No.'" Edelstein v. United States, 17 A. B. R. 658, 149 Fed. 636 (C. C. A. Minn.): "The government contends that the immunity has sole reference to the use of evi |