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would continue as long as the criminal lived and did not surrender. This is exactly the situation painted with disapproval in the Irvine case (page 452), and to look upon the facts otherwise to overrule and disregard statutes of limitation generally. If Phillips can be successfully prosecuted under this indictment, every living bankrupt who has been suspected of concealing property can at any time be indicted therefor. I do not so read the act.

"More than 12 months before the indictment was found he did the things relied on as constituting concealment. Within the 12 months before the indictment he did nothing but remain passive and silent. He did not schedule the alleged concealed property, but the schedules omitting it were filed more than 12 monthsbefore the indictment. *** The United States attorneys, in the forcible argument presented for the government, contend that the offense charged is a continuing offense, and that the statute of limitations does not begin to run until the termination of the concealment or until the bankrupt has abandoned his effort to conceal the property;' that as long as he 'fails to notify the trustee of the whereabouts of the property, the concealment continues, and there is no statute of limitations to prevent the prosecution.' *** The government's contention, therefore, must fall, unless the mere silence and passivity of the defendant after the alleged concealment makes the crime a continuing one, so that, to quote the brief, 'there is no statute of limitations to prevent the prosecution.'

"We can not concede that such is the case. ***. If the contention of the government were correct the statute of one year, while in terms it is made to apply to cases of concealing assets, would in practice seldom have any application. Twenty years after the appointment of the trustee the bankrupt could be prosecuted for concealing assets, and the government could prove that he had purchased certain goods shortly before the bankruptcy, that such goods were not surrendered, and then, by proof of some circumstances from which the jury might determine that there had been concealment, have a case sufficient to go to the jury. Twenty years having elapsed, the defendant's witnesses might be gone or dead, and even his own memory might fail him in making a satisfactory explanation. ***

"It is true that there may in some cases be difficulty in showing when the act or series of acts occurred which made the crime complete; but when the property is knowingly and fraudulently concealed from the trustee-a fact that may be proved like any other fact-the bankrupt is liable to prosecution and the statute of limitations begins to run. In other words, it runs from the time of the commission."

But this overt act need not be the initial act of removing or secreting the property; it is an overt act of concealment to fail to declare the property when questioned with relation thereto on general examination or to fail to schedule the property when it is his duty to schedule it.60

However, such limitation does not apply to indictments for conspiracy to commit an offense against the Bankruptcy Act, for such indictments are not brought under § 29 of the Bankruptcy Act, but under Rev. Stat., U. S., § 5440.61

Obiter, Warren v. United States, 29 A. B. R. 555, 199 Fed. 753 (C. C. A. La.): "There are certain conspiracies where the statute would not begin to run when the conspiracy is completely formed, because the plot contemplates the bringing to pass a continuous result that will not continue without the continuous co

60. Compare ante, "Continuing Concealment," § 2319.

61. United States v. Comstock, 20 A. B. R. 525, 161 Fed. 644 (D. C. R. I.).

operation of the conspirators. In such case the crime contemplates something to be done in the future to forward the criminal purpose. United States v. Kissel, 218 U. S. 601, 607. ***. If the indictment here were for a conspiracy to conceal property of the bankrupt from the trustee, and contemplated continuous acts in which the conspirators were to co-operate to carry out the criminal intention, the statute of limitations would not begin to run at the completion of the conspiracy; for the offense charged would be continuous, contemplating continuous future action to complete the crime. But here we have no such charge and no such proof. The defendant is charged with the act of fraudulently concealing certain property. The fact that concealed property remains concealed does not continue the offense of concealing it, for 'continuance of the result of a crime does not continue the crime.' The murdered man continues to be dead, but that does not make his murder a continuing offense."

§ 2329 4/10. Suppression of Criminal Prosecution. The court will not sanction a compromise based upon the stifling of a criminal prosecution of the bankrupt, even though thereby assets are brought into the estate.62

§ 2329 5/10. Miscellaneous Matters of Practice.-Proofs of claims are not admissible as against the bankrupt, at any rate, not unless showing be made that the bankrupt had examined and approved them.

Jacobs v. United States, 20 A. B. R. 550, 161 Fed. 694 (C. C. A. Mass.): "Clearly, unless some special reason is shown to the contrary, these proofs were strictly inter alios, mere declarations of third persons; and the admission of them was a plain violation of the rule relative to the use of that class of evidence. It is claimed, however, by the United States, that it was the duty of Jacobs, under the statutes in bankruptcy, to examine the claims when offered in proof, and to advise if they were not correct. This, however, is only a partial statement, and what is omitted is fatal to the proposition. It is true that § 7 of the Act of July 1, 1898, * * * provides that, in the case of any person having to the knowledge of the bankrupt proved a false claim, he (the bankrupt) shall disclose that fact to his trustee; but it also further provides that he shall not be required to examine claims except when presented to him unless ordered by the court or a judge thereof for cause shown.' There is no evidence in the record of any such presentation to Jacobs of the claims in question, or that he had any actual knowledge of what was proved against the estate, or that he had ever been requested in any way to take any part in reference thereto. Consequently, the admission of this evidence was clearly erroneous and prejudicial."

Privileged communications are to be respected; but in accordance with state law communications to the wife must be confidential. The rules as to privileged communications between husband and wife are different in examinations under § 21 (a).62a

The filing of amended schedules or other act "meet for repentance," after discovery, is ineffective to avoid the criminal prosecution, though it may be taken into account in fixing sentence.63

62. In re Rosenblatt, 18 A. B. R. 663, 153 Fed. 335 (D. C. Pa.); Mulford v. Fourth St. Nat. Bank, 19 A. B. R. 742, 157 Fed. 897 (C. C. A. Pa.).

62a. See ante, § 1566.

63. Kern v. United States, 22 A. B. R. 223, 169 Fed. 617 (C. C. A. Tenn.),

quoted at 2543.

Limits of Right of Examination, Cross-Examination and Re-Direct Examination.-See Jacobs v. U. S., 20 A. B. R. 550, 161 Fed. 694 (C. C. A. Mass.).

One who commits an unlawful act knowing that it is unlawful can not be heard to say he did it with innocent intent. The law presumes that every sane person intends the necessary consequences of his act.64

The burden of proof is on the government to establish the defendant's guilt beyond reasonable doubt.

Chodkowski v. United States, 28 A. B. R. 62, 194 Fed. 858 (C. C. A. Ill.): "The burden of proof was on the government to establish the guilt of plaintiff in error beyond a reasonable doubt. These propositions are too well settled to require citation of authorities."

The presumption of innocence is to prevail until guilt is proved.

Chodkowski v. United States, 28 A. B. R. 62, 194 Fed. 858 (C. C. A. III.): "Plaintiff in error was entitled to have the jury instructed that, if they found from the evidence that Chodkowski and wife conveyed to Wojnowski the lots in question by warranty deed, then the law presumes that in so doing appellant acted legally and in good faith, and required that the jury should give him the benefit of that presumption."

The adjudication in bankruptcy may not be collaterally impeached.65

It would seem that it is not necessary in conspiracy cases that a writ of error to review a conviction be joint; it is in accordance with the authorities and practice that each may sue out separate writs.66 But the citation on the writ is defective where it does not give the names of all applicants for the writ.67

Error does not lie for the denial of a motion to quash an indictment on account of anything which may be raised by demurrer.68

§ 2329 6/10. Disqualification of Judge, for Notifying Authorities of Probable Commission of Crime.-It is undoubtedly the right of the court and also his duty to cause the United States attorney or other proper authorities to be notified of the probable commission of crime. Nor does it disqualify the court to sit in the case as becoming "concerned in interest" or "of counsel" for the prosecution.

Epstein v. United States, 28 A. B. R. 561, 196 Fed. 354 (C. C. A. Ills.): "Plaintiff in error filed an affidavit in which he alleged that the judge was conducting a hearing in a bankruptcy case for the purpose of discovering assets; that at the conclusion of the hearing the judge appeared to be angry and said in the presence and hearing of affiant, "This is a nasty piece of business; this estate has been looted by some one;' that the judge then turned to a gentleman standing at the bar and said: 'Use what is left of this estate, even to the last penny, to investigate this matter, and if any one, whoever he may be, has committed any act that can be reached and punished under the law, institute proceedings against him.'

"On this it is asserted that the judge was 'concerned in interest' in the case,

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and became of counsel' for the prosecution. Official duties of the trial judge include his instructions to grand jurors to investigate alleged violations of law, which may be brought to their attention by the district attorney or otherwise, and of whose actual existence the judge personally knows nothing. If in the course of official business in court the judge sees that an offense against the Penal Code has been or is being committed, does his official duty require him to ignore the matter? No, we say. For him to fail to direct an investigation to be made would be not merely an abandonment of his post as a minister of the law, but as well an implied approval or condonation of the offense. To direct a prosecuting officer (and presumably the 'gentleman standing at the bar' was an officer who pursued the inquiry which resulted in the indictment) to inquire into a matter occurring in court, certainly no more than charging a grand jury, makes the judge concerned in interest' or 'of counsel' for the prosecution within the meaning of § 601."

CHAPTER XLIV.

CONTEMPTS.

Synopsis of Chapter.

§ 2330. Contempt, What Constitutes, in General.

§ 2330%. Distinction between Civil and Criminal Contempt.

§ 23304. Dealing with Bankrupt's Assets after Oral Notice of Bankruptcy.

§ 23302. Failure to File Schedules, as Contempt.

§ 233034. Failure to Obey Summary Orders.

§ 2331. "Willfully Evasive" or "Flagrantly False" Testimony in Face of Court, Contempt.

§ 23311⁄2. Interference with Property in Custody.

§ 2332. Contempt Not in Presence of Court.

§ 2333. Advice of Counsel.

§ 2334. Contempt before Referee, What Constitutes, Defined by Statute.

§ 2335. Referee Has No Power to Commit.

§ 2336. Referee Simply to Certify Facts to Judge.

§ 2337. Making of Certificate, Judicial Act, Not Ministerial Duty.

§ 23374. Weight of Referee's Findings as to Contempt.

§ 23372. Entitled to Notice and Hearing before Certificate.

§ 2338. Judge to Hear and Punish, if Contempt Committed.

§ 2339. Power to Commit, Cautiously Exercised.

§ 2340. Evidence to Be beyond Reasonable Doubt.

§ 2341. No Punishment for Failure to Comply with Order until Opportunity Given to Show Inability.

§ 23414. Whether Original Evidence on Order to Surrender Assets Re-Examined on Contempt for Disobedience of Order.

§ 2341%. Conditional Order of Commitment.

§ 23412. Purging from Contempt.

§ 2342. Review of Refusal to Certify.

§ 2343. Not Reviewable by Habeas Corpus.

§ 2344. Order of District Judge Not Reversed Except for Clear Error. 23442. Whilst in Contempt Not to Be Heard.

§ 234434. Discharge from Custody.

§ 2330. Contempt, What Constitutes, in General.-What will constitute contempt of the United States district court as a court of bankruptcy, is left in general to the ordinary rules of law upon the subject.1

1. Instance, willfully evasive testimony in face of court. In re Fellerman, 17 A. B. R. 789, 149 Fed. 244 (D. C. N. Y.).

Instance, United States v. Goldstein, 12 A. B. R. 755, 132 Fed. 789 (D. C. Va.); instance, In re Home Discount Co., 17 A. B. R. 170, 147 Fed. 538 (D. C. Ala.).

Instance, obiter, instituting suits in state courts to recover property in specie from bankruptcy trustee. Turrentine v. Blackmore. 4 A. B. R. 338,

125 Ala. 436. 28 So. 95.

Instance, disobedience of injunction restraining execution creditors from examining the bankrupt in supplementary proceedings. In re Fortunato. 9 A. B. R. 630, 123 Fed. 622 (D. C. N. Y.).

Instance, assaulting the trustee while the latter is performing the duties of his office. Ex parte O'Neal, 11 A. B. R. 196, 125 Fed. 967 (D. C. Fla.).

Instance, constable turning back to purchaser at execution sale excess of

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