May 8, 1934
UNITED STATES (TWO CASES)
Appeal from the District Court of the United States for the Eastern District of Pennsylvania; George A. Welsh, Judge.
Before BUFFINGTON and DAVIS, Circuit Judges, and JOHNSON, District Judge.
BUFFINGTON, Circuit Judge.
From the record in these cases it appears that one Herman Rovner, who did business in Philadelphia as A. Rovner & Sons, was duly adjudged bankrupt. Thereafter he said Herman Rovner, together with Benjamin Kutler and Samuel Kutler, were indicted on the charge that they did "knowlingly, wilfully and fraudulently conceal property belonging to the bankrupt estate of said Herman Rovner, t.a., A. Rovner & Sons, etc., to the value of $80,000." On trial, Herman Rovner pleaded guilty and appeared as a witness for the government. The Kutlers pleaded not guilty, went on the stand as witnesses, and were convicted.From the sentences imposed on them, they appealed to this court.
The testimony of Rovner, if believed, as it evidently was by the jury's verdict of guilty, tended to show that the three men planned the fraud by which this was done. In substance, large quantities of merchandise were to be ordered on Rovner's stationery and, when received, were to be removed and thereafter sold by the Kutlers and the net proceeds divided among the three men. In this way some $82,000 of merchandise was obtained and sold by the Kutlers, and Rovner received as his share some $25,000.
The questions involved in the case are, as stated in appellants' brief, first, the alleged erroneous admission of testimony, and, second, the alleged overemphasis of the government's case in the court's charge. We here note that there are no grounds to sustain these assignments, as timely exceptions were not taken, but, notwithstanding this, we have studied the proofs and considered the alleged error as though properly before us, with the result that we find error in none of these assignments. Complaint is made that there was error in allowing the receiver in bankruptcy to testify that on taking possession of Rovner's store he found it was from four-fifths to nine-tenths empty and contained less than a thousand dollars worth of goods. As Rovner testified that, as received, he made a record of the goods turned over to the Kutlers and received in reply yellow lists showing the disposition of the goods, it is clear that the testimony of what was found in the store was confirmatory of his story. As to these yellow sheets which Rovner produced, they were alleged by him to have been initialed and delivered to him by Kutler, and the latter denied this was the fact.
All the members of the court have studied the proofs, the other alleged errors and the charge of the court, with the result that we find no error, and the judgments below are affirmed.
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