Testimony taken pursuant to former section 44 of this Title was admissible as an admission of a party against interest, and it was immaterial whether defendant was able to testify or had testified in the action
How later courts described this case
- Testimony taken pursuant to former section 44 of this Title was admissible as an admission of a party against interest, and it was immaterial whether defendant was able to testify or had testified in the action
Written by the judges who cited it.
The opinion
HANEY, Circuit Judge
(dissenting).
I think it unnecessary to discuss the rules of this court cited by the majority for notwithstanding the alleged violation thereof found in the majority opinion, such opinion is reached by a consideration and determination of the merits.
Appellant alleged that certain sales of merchandise, enumeration and content thereof being admitted by answer of appellees, were made by the bankrupt with the intent on his part to defraud his creditors. Appellant sought to show the intent by proving a shrinkage of assets while liabilities were increasing. He asserts that such proof is evidence of the fraudulent intent, and relies on cases wherein such evidence is held admissible in criminal cases charging concealment of assets by a bankrupt. The majority apparently assumes the rule to be applicable here although the contention is not mentioned. I express no opinion in that regard, but will assume for the purposes of this dissent that the rule relied on is applicable here.
Appellant’s argument is that proof of a shrinkage of assets, with increase of liabilities, is sufficient to support an inference of the intent to defraud on the part of the bankrupt. To prove the shrinkage, appellant introduced the books of the bankrupt which disclosed the inventory of the bankrupt on January 1, 1937. It was necessary, under appellant’s theory, to prove the inventory of the bankrupt on July 9, 1937. One Stern had taken an inventory of the stock in bankrupt’s place of business on the latter date, and appellant offered such inventory in evidence. The inventory was properly excluded for several reasons, unnecessary here to state because the majority neither holds nor contends to the contrary. The shrinkage was not attempted to be shown in any manner except by use of such inventory. With its exclusion went all proof of one element in the case — the bankrupt’s intent to defraud — and, as appellant concedes, the “entire case necessarily collapsed”.
With that situation in mind, a different light is thrown on the alleged errors which the majority hold to be reversible. As to the first error (appellant’s point 13), mentioned by the majority, the questions were designed to lay a foundation for the introduction of certain inventories taken by Stern at appellees’ place of business in Seattle. These inventories merely showed what merchandise purchased from bankrupt, appellees then had, a point wholly immaterial to the case because appellees admitted by their answer to the purchase of the goods specified in the bill of particulars at the prices therein stated. Surely it is not error to exclude evidence of facts already admitted. The authorities so hold. Dempster v. Cochran, 3 Cir., 174 F. 587 ; Spring Garden Ins. Co. v. Wood, 4 Cir. 233 F. 223 , certiorari denied 242 U.S. 631 , 37 S.Ct. 15 , 61 L.Ed. 537 ; Mitchell v. Pittsburgh, C., C. & St. L. R. Co., 6 Cir., 13 F.2d 704 ; German Ins. Co. v. Frederick, 8 Cir., 58 F. 144 .
With respect to the exclusion of the transcript of testimony of appellee N. Anches (appellant’s point 25), the purpose of such evidence was to show knowledge on the part of appellees of the bankrupt’s scheme to defraud. The inyoices excluded (appellant’s point 12), were offered as proof in part of the theory alleged to show. shrinkage by disclosing the purchases after January 1, 1937. As stated, however, no shrinkage was or could be shown, because the inventory taken on July 9, 1937, was not admissible. Thus, even if the evidence mentioned had been admitted, the result would not and could not have been changed, because in the absence of proof of shrinkage, there was no proof of intent to defraud. The exclusion of evidence which could not change the result of the case is not reversible error. Teese et al. v. Huntingdon et al., 64 U.S. 2 , 23 How. 2, 8 , 16 L.Ed. 479 ; Reavis v. Fianza, 215 U.S. 16, 25 , 30 S.Ct. 1 , 54 L.Ed. 72 , Sac and Fox Indians of the Mississippi, 220 U.S. 481, 489 , 31 S.Ct. 473 , 55 L.Ed. 552 ; Edwards v. Robinson, 9 Cir., 8 F.2d 726, 727 ; Corrigan v. United States, 9 Cir., 82 F.2d 106, 109 .
For the foregoing reasons I think the judgment should be affirmed.