20 F.(2d) 36 10506), for procuring bankrupt to conceal property from trustee, where property held by bankrupt corporation a year before bankruptcy was not accounted for. bankruptcy sales were conducted. Upon this evidence the defendant was convicted. He prosecutes error, contending that the indictment was insufficient, and that the evidence 4. Statutes 241 (1)-Criminal statute is did not warrant a conviction. not construed to include conduct at which it was not aimed. Criminal statute will not be construed to include conduct at which it was not clearly aimed. Knappen, Circuit Judge, dissenting. In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; Paul Jones, Judge. Armin Gross was convicted of concealing property of the Reimer-Gross Company from its trustee in bankruptcy, and he brings error. Reversed. H. Frank Van Lill, of Cleveland, Ohio (Orgill, Maschke & Wickham, of Cleveland, Ohio, on the brief), for plaintiff in error. D. C. Van Buren, Asst. U. S. Atty., of Cleveland, Ohio (A. E. Bernsteen, U. S. Atty., and M. E. Evans, Asst. U. S. Atty., both of Cleveland, Ohio, on the brief), for the United States. [1] The argument against the indictment is that it failed to set forth the facts distinctly enough to advise the accused with reasonable certainty of the charge and to enable him to plead a judgment thereon in bar of another prosecution for the same offense. This rule in its latter aspect is admittedly not so strict as wholly to exclude the right of resort to parol testimony to assist in identifying the former offense. Bartell v. United States, 227 U. S. 427, 33 S. Ct. 383, 57 L. Ed. 583. Accepting this as the test, the question is whether the allegation that defendant concealed "certain goods, wares, merchandise, money credits, and other things of value in the amount of $10,000 or more, a further and more particular description thereof being to the grand jurors unknown," was sufficient. The fact that the government relied in its proofs upon a shrinkage in assets during the year preceding the bankruptcy bears upon the question we are considering only so far as Before DENISON, MOORMAN, and it indicates that the lower court thought the KNAPPEN, Circuit Judges. MOORMAN, Circuit Judge. Plaintiff in error was the sole owner of the Reimer-Gross Company, which was adjudged a bankrupt August 4, 1925. He was charged in the court below with concealing property of the bankrupt from its trustee. The property alleged to have been concealed, as stated in the indictment, consisted of "certain goods, wares, merchandise, money credits, and other things of value in the amount of $10,000 or more, a further and more particular description thereof being to the grand jurors unknown." Upon the trial the government relied in the main for its proofs upon a financial statement made by Gross showing assets in the hands of the Reimer-Gross Company of the value of $31,647.76 on September 8, 1924, upon an inventory of the merchandise turned over to the trustee of the cost value of $25,984.50, and upon the books of the bankrupt, from which it appeared that it purchased, between September 8, 1924, and the date of bankruptcy, goods amounting to $84,816.33, and sold during that period goods of the value of $48,870.49, leaving unaccounted for something over $40,000. There was also evidence to the effect that within the year preceding the adjudication Gross had delivered goods, sometimes as often as two or three times a day, to a place in Cleveland where indictment broad enough to include all kinds of property of whatever value in the general classes mentioned. This lack of identity or definiteness is the thing of which defendant complains. There is no theory, so far as we are advised, upon which the government ought to have been permitted to prove the concealment of property other than that or in excess of that alleged in the indictment. That no specific property of the value of $10,000 could be separated from what the government claimed was a total concealment of assets worth $40,000, and that it did not attempt to and could not identify any of the property, only serve to illustrate the generality of the averment. Every term used-i. e., goods, wares, merchandise, money credits, and other things of value is general. The first three would include everything kept in a store or subject to any kind of mercantile trade. "Money credits" is even more indefinite and general, and "other things of value" is so indescribably broad as to be practically all-embracing. None of them signifies anything specific, or is susceptible of a limited class identification. Section 29b of the Bankruptcy Act (Comp. St. § 9613) denounces as an offense the concealment by a bankrupt, from his trustee, "of the property belonging to his estate in bankruptcy." If the word "property" were substituted for the words "goods, wares, mer chandise, money credits, and other things of value," the indictment would be hardly more general or less informative than as drawn. It would not, we dare say, be contended that such an indictment in the language of the statute was good. In Ledbetter v. United States, 170 U. S. 606, 18 S. Ct. 774, 42 L. Ed. 1162, the statute defined "the offense with the requisite precision"; and in United States v. Hess, 124 U. S. 483, 8 S. Ct. 571, 31 L. Ed. 516, it was said, "Undoubtedly the language of the statute may be used in the general description of an offense, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offense, coming under the general description, with which he is charged." The latter opinion was cited in Armour Packing Co. v. United States, 209 U. S. 56, 28 S. Ct. 428, 52 L. Ed. 681, where it was again stated that the "charge must be sufficiently definite to enable him [the accused] to make his defense and avail himself of the record of conviction or acquittal for his protection against further prosecutions. ⚫ ⚫ And it is true it is not always sufficient to charge statutory offenses in the language of the statutes, and, where the offense includes generic terms, it is not sufficient that the indictment charge the offense in the same generic terms, but it must state the particulars." Other cases bearing on the subject are United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; United States v. Simmons, 96 U. S. 360, 24 L. Ed. 819; United States v. Carll, 105 U. S. 611, 26 L. Ed. 1135; Rosen v. United States, 161 U. S. 29, 16 S. Ct. 434, 480, 40 L. Ed. 606. An indictment may be indefinite in two respects, as pointed out in Leonard v. United, States, 18 F. (2d) 208, in the character of the acts charged, and the identifying circumstances. The indictment in that case charged the sale of "intoxicating liquor," a term defined in the statute, and we sustained the indictment, having in mind the provision in the act for a bill of particulars, by which there was evidenced an intent, so far as permitted by the Fifth and Sixth Amendments, to provide for simple and brief indictments under that act. A certain amount of particularity, no doubt, is required by the Constitution-just what has never been authoritatively determined -and yet there is a considerable additional particularity required by the body of law and decisions that has grown up. This additionally established requirement Congress could modify as to any selected class of prosecutions, and the rather extreme degree of uncertainty approved by the Leonard Case does not go beyond what we thought was the congres sional intent as to indictments under that act. Neither this nor any other case goes so far as to validate an indictment that is lacking in the fundamentals of criminal pleading, and of course it has never been thought that a bill of particulars can make valid an indictment that is otherwise bad. Most of the cases upon which the government relies deal, as an examination will show, more with the quantum of evidence than with the sufficiency of averment. It does not appear in Arine v. United States (C. C. A.) 10 F. (2d) 778, and Frieden v. United States (C. C. A.) 5 F.(2d) 556, what the averments of the indictments were; the cases being decided on the evidence. In each of them the proof was decidedly more definite, both as to character of acts and identifying circumstances, than in the case at bar. That, we think, however, is immaterial here, as we likewise think those cases are to be given little weight, because wholly lacking in any considered conclusion touching the precise question under consideration. While there are general statements in Rudner v. United States (6 C. C. A.) 281 F. 516, Huth v. United States (6 C. C. A.) 295 F. 35, Dierkes v. United States (6 C. C. A.) 274 F. 75, and Tea & Spice Co. v. United States (6 C. C. A.) 288 F. 475, indicating that an indictment framed in the language of the statute is sufficient, there was a distinct dissimilarity between each of those indictments and the one involved here, none of them being so indefinite or general in its terms. The first two cases arose under the National Prohibition Act (Comp. St. § 101384 et seq.), and the conclusions in the other two were rested on the Armour and Hess Cases. In Keslinsky v. United States (C. C. A.) 12 F. (2d) 767, it was held that an indictment charging the bankrupt with concealing certain goods, wares, moneys, merchandise, shoes, and personal property belonging to the bankrupt, when considered in connection with the information furnished the accused by the district attorney, was sufficiently definite. United States v. Greenbaum (D. C.) 252 F. 259, and Dunbar v. United States, 156 U. S. 185, 15 S. Ct. 325, 39 L. Ed. 390, were cited in support of the conclusion. In the Greenbaum Case the property that was alleged to have been concealed was women's and children's clothing, ready-to-wear garments, general clothing, dry goods, and merchandise, being the kind and description manufactured and handled by Greenbaum at his place of business, 285 Gratiot avenue, in the city of Detroit. The description was obviously less indefinite than "goods, wares, merchandise, 20 F.(2d) 36 shown that the concealment occurred while the money credits, and other things of value." The Dunbar Case arose under a revenue statute, which made it an offense to introduce into the United States "any goods, wares, or merchandise" subject to duty by law without paying or accounting for the duty thereon. The allegation was that the accused had introduced into this country from Canada "certain goods, wares, and merchandise, to wit, a large quantity of prepared opium, being about 1,400 pounds of prepared opium." In holding the indictment good the court remarked that, while it might not be sufficient to use only the words of the statute, "goods, wares or merchandise" (the same words used here, with others even more general), in "describing the property charged to have been smuggled, because they are too general and do not sufficiently identify the property, yet any words of description which make clear to the common understanding the articles in respect to which the offense is alleged are sufficient." [2] Notwithstanding the decision in the Keslinsky Case, and the implications arising from other cases cited by the government, where somewhat analogous questions were decided on the evidence, we do not doubt that the plainest principles of criminal pleading require that an indictment should be sufficiently definite to inform the accused with reasonable certainty with what he is charged. There seems to be nothing in the indictment in question that put the defendant on notice of the articles or things he was charged with concealing. The concealed property, as we have seen, was referred to in terms almost as broad as the term "property" itself. That term is generic and may be divided into innumerable classes; "goods, wares, and merchandise" are similarly subject to many subdivisions and classifications. They are broad enough to permit proof of almost every species of personal property which one could hold or own. There are no comparative references, from which the character of the property could be inferred or separated into articles susceptible of identification. We doubt that such an indictment is good, yet we turn to a consideration of the proof as demonstrating the extreme degree of generality upon which the indictment was based, preferring to let our conclusions rest on the insufficiency of that proof KNAPPEN, Circuit Judge (dissenting). to establish the offense which the statute was I am unable to concur in the reversal of this intended to denounce. [3] The accused was not a bankrupt, but, if he induced or procured the bankrupt to conceal from its trustee property belonging to the bankrupt estate, he is chargeable with the offense as a principal. Comp. St. § 10506. It was necessary to his conviction that it be Judgment reversed. case. I think the indictment sufficient, and that it falls within the rule, sustained by a long line of authorities, that generally, in an indictment for a statutory offense, it is sufficient to describe the offense in the words of the statute, and it is for the defendant to show that greater particularity is required by rea son of the omission from the statute of some element of the offense. Ledbetter v. United States, 170 U. S. 606, 612, 18 S. Ct. 774, 42 L. Ed. 1162; Armour Packing Co. v. United States, 209 U. S. 56, 57, 84, 28 S. Ct. 428, 52 L. Ed. 681; Dierkes v. United States (C. C. A. 6) 274 F. 75, 77, 78, 79, and headnote No. 2, certiorari denied 257 U. S. 646, 42 S. Ct. 55, 66 L. Ed. 414; Rudner v. United States (C. C. A. 6) 281 F. 516, 518, certiorari denied 260 U. S. 734, 43 S. Ct. 95, 67 L. Ed. 487; Newton Tea & Spice Co. v. United States (C. C. A. 6) 288 F. 475. I think the indictment sufficiently states the statutory elements, and is as definite as the indictments in some of the cases above cited. I cannot think that the failure of the indictment to state how the $10,000 in value alleged to have been concealed was made uphow many and what specific items of different kinds of merchandise-renders the indictment insufficient. Keslinsky v. United States (C. C. A. 5) 12 F.(2d) 767. In the nature of things, such detailed information on the part of the government would be impossible to obtain. The testimony indicates that for a considerable period antedating bankruptcy defendant was engaged in wrongful conduct, and, inferably, in direct preparation for the expected bankruptcy. In my opinion, the record, considered in its entirety, presents no reversible error. I think there was substantial evidence to support the conviction. The case seems to me to fall within the mischief sought to be prevented by section 269 of the Judicial Code, as amended by Act Feb. 26, 1919 (Comp. St. § 1246), which requires the court to give judgment "without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties," and section 1691, U. S. Comp. Stat. 1916, which provides that "no indictment found and presented by a grand jury in any court of the United States shall be deemed insufficient, nor shall the trial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defend ant." GRANTHAM et al. v. CITY OF CHADRON. No. 6746. 1. Constitutional law 134-Obligation of contract held not impaired by ordinance for condemnation of right of way for water pipes (Const. art. 1, § 10). A city ordinance, passed under power conferred by Rev. St. Neb. 1913, §§ 4904, 4905, for condemnation of right of way for a water pipe line, held not an impairment of the obligation of an alleged contract between the city and the landowner for purchase of the right of way, within Const, art. 1, § 10, but rather a repudiation of the contract. 2. Municipal corporations 593-City cannot contract away police power. A city cannot contract away the right to exercise its police powers in the public interest, 3. Constitutional law 113-Repudiation of contract is not impairment of its obligation (Const. art. 1, § 10). Mere repudiation of a contract is not impairment of its obligation, within Const. art. 1, § 10. 4. Removal of causes 18-Cause removed from state court held not to involve constitutional question which gave federal court jurisdiction. Cause removed from state court held not to involve constitutional question, which gave the federal court jurisdiction. Appeal from the District Court of the United States for the District of Nebraska; Joseph W. Woodrough, Judge. Suit in equity by Uriah W. Grantham and Elizabeth F. Grantham against the city of Chadron. Decree for defendant, and complainants appeal. Reversed, with direction to remand to state court. Allen Gwire Fisher, of Chadron, Neb. (Samuel L. O'Brien, of Chadron, Neb., on the brief), for appellants. J. E. Porter, of Crawford, Neb. (Greydon L. Nichols, of Chadron, Neb., on the brief), for appellee. Before WALTER H. SANBORN and BOOTH, Circuit Judges, and KENNAMER, KENNAMER, District Judge. The city of Chadron, Neb., condemned certain lands of the appellants for a right of way to be used for a pipe line by the city in the enlargement of its water supply. The city proceeded under Ordinance No. 329 of said city for the appropriation of the right of way, which ordinance was enacted under the authority of sections 4904 and 4905, Revised Statutes of Nebraska 1913. The above statutory provisions authorize cities of Nebraska to purchase or appropriate private property for the use of the city in the construction of waterworks, making provision for the assessment of damages by disinterested freeholders. Section 4937, Rev. Stat. Neb. 1913, provides for an appeal to the district court of the county from the assessment of damages by the freeholders. This suit originated as an appeal by appellants to the district court of Dawes county, Neb., from an award of 20 F.(2d) 40 $600 by freeholders as damages for the appropriation of the right of way. After the appeal had been taken, appellants removed the case to the District Court of the United States for the District of Nebraska, in which court appellants filed a petition setting up a conveyance by them to the city of the right of way upon the consideration that arbitrators should assess the value thereof, and a contract between them and the city of Chadron for the submission to arbitrators, containing an award of $5,000 for the right of way over the premises of appellants. They further alleged the invalidity of the condemnation proceedings under Ordinance No. 329, supra, and sought specific enforcement of the award of $5,000 and the agreement under which it was made. To the petition, the city filed an answer alleging that the contracts between the appellants and the city were executed without authority from the city or its council, that the same were never fully executed by either of the parties, that the award was void and unenforceable because unconscionable, inequitable, and that the same was obtained by fraud. The contract pleaded by appellants was prior in point of time to the enactment of Ordinance No. 329, supra, and it is contended that said ordinance made pursuant to the laws of the state of Nebraska is a law impairing the obligations of the contract, within the meaning of section 10 of article 1 of the Constitution of the United States. The cause was referred to a special master, who found that the contract upon which appellants relied for their cause of action was never officially approved by the city of Chadron, and recommended a dismissal of the petition for want of equity. The report of the master was approved by the District Court and the petition ordered dismissed. Error is assigned in the refusal of the court to order specific performance of the arbitration agreement and the refusal to enter judgment for the $5,000 award of the arbitrators. [1,2] The only question we deem necessary to determine is whether the ordinance providing for the condemnation of the right of way impairs the obligations of the contract for arbitration made by the parties hereto, for this constitutes the only ground for the maintenance of the cause in the federal court. We are of the opinion that the ordinance complained of is not within the constitutional inhibition against impairing the obligations of a contract. The city, in passing the ordinance, was exercising powers conferred by the statutes of the state of Nebraska, in the interest of the public, and it is not contended that the ordinance under consideration was not valid under the laws of the state of Nebraska. The city, in obtaining the right of way for a pipe line, was exercising a right conferred upon it by statute, as a police power, having as its purpose the supplying of water to its inhabitants. The Supreme Court of the United States, in Northern Pacific Railway Co. v. State of Minnesota ex rel. City of Duluth, 208 U. S. 583, 28 S. Ct. 341, 52 L. Ed. 630, held that the exercise of the police power in the interest of public health and safety is to be maintained unhampered by contracts in private interests, and further, that the right to exercise the police power is a continuing one that cannot be limited or contracted away by the state or its municipality. [3] In the instant case the city of Chadron refused to recognize the existence of a valid contract for the purchase of the right of way, but proceeded to appropriate the lands of appellants under the ordinance enacted. We are of the opinion that the effect of the ordinance enacted by the city was only a repudiation of the alleged contract of arbitration; therefore no federal question is presented. It is well settled that the mere repudiation of its contract is not an impairment of the contract, within the meaning of the Constitution of the United States. St. Paul Gaslight Co. v. St. Paul, 181 U. S. 142, 21 S. Ct. 575, 45 L. Ed. 788; Dawson v. Columbia Tr. Co., 197 U. S. 178, 25 S. Ct. 420, 49 L. Ed. 713; Manila Investment Co. v. Trammell, 239 U. S. 31, 36 S. Ct. 12, 60 L. Ed. 129; McCormick v. Oklahoma City, 236 U. S. 657, 35 S. Ct. 455, 59 L. Ed. 771; Shawnee Sewerage Co. v. Stearns, 220 U. S. 462, 471, 31 S. Ct. 452, 55 L. Ed. 544. [4] The trial court should have remanded the case to the district court of Dawes county, Neb., where appellants are afforded a jury trial for the determination of damages. Section 4937, Rev. Stat. Neb. 1913. The judgment of the District Court is reversed, with directions to remand the case to the district court of Dawes county, Neb. |