Even if the defendant retained only an equitable interest in the boats, failure to list that interest could support the charge. See United States v. Schireson, 116 F.2d 881, 883 (3d Cir. 1940); Goetz v. United States, 59 F.2d 511, 512 (7th Cir.), cert. denied, 287 U.S. 649, 53 S.Ct. 95, 77 L.Ed. 561 (1932). See also Duggins v. Heffron, 128 F.2d 546, 548 (9th Cir. 1942).
Reasonably construed the indictment charges concealment by failure to schedule. Cf. United States v. Young, 7 Cir., 339 F.2d 1003; United States v. Zimmerman, 7 Cir., 158 F.2d 559; Goetz v. United States, 7 Cir., 59 F.2d 511. Count I was dismissed at the close of the government's evidence when it became evident from the notary's testimony that the defendant had not been sworn upon oath.
The failure to schedule the assets constituted a concealment. Goetz v. United States, 7 Cir., 59 F.2d 511; United States v. Zimmerman, 7 Cir., 158 F.2d 559. Demand on the part of the trustee was not necessary, as defendant urges, in order to establish concealment. Douchan v. United States, 6 Cir., 136 F.2d 144, 146.
a proposition which was not disputed on the trial and is not disputed here. Nothing is said in the brief in support of the grounds of the motion, nothing could be. This is so because the conspiracy indictment was good even against a motion to quash, and, for a much stronger reason, it was sufficient to withstand the motion in arrest of judgment. Finn v. United States, 4 Cir., 256 F.2d 304; Goetz v. United States, 7 Cir., 59 F.2d 511; Gibson v. United States, 9 Cir., 31 F.2d 19. The other ground, that the offense, if any, was not committed in the district is as clearly without merit for a conspiracy may be prosecuted either at the place where the conspiracy was formed, Dealy v. United States, 152 U.S. 539, 14 S.Ct. 680, 38 L.Ed. 545, or where any of the overt acts were committed, Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, and the evidence was ample to show jurisdiction.
Various decisions have from time to time indicated that there is a legal difference between the crime of a false oath in bankruptcy proceedings and perjury. This Court, in Goetz v. U.S., 59 F.2d 511, 512, in reviewing a conviction under the earlier provision of the Bankruptcy Act, similar in all ways to the present one, said: "Appellant seeks to interpret each count of the indictment in the light of the statute and decisions relating to perjury, and they are not applicable to the instant case." Recently, Judge Kerner, speaking for the court, in U.S. v. Lynch, 7 Cir., 180 F.2d 696, said, at page 701: "But this court has held that proof of false oath in bankruptcy need not contain all of the elements of perjury.
As already noted, count 12 charged defendant with knowingly and fraudulently making a false oath. Defendant makes the point that under § 152 of the Code, the proofs must contain all the elements of perjury, Willoughby v. Jamison, 8 Cir., 103 F.2d 821, and where there is no evidence from which the jury could infer that the defendant did not believe the report subscribed under oath to be true at the time the oath was made, the verdict cannot be sustained. United States v. Richards, D.C., 149 F. 443. But this court has held that proof of false oath in bankruptcy need not contain all of the elements of perjury, Goetz v. United States, 7 Cir., 59 F.2d 511, 512, and if defendant's report was knowingly false at the time he made it, the crime charged had been completed, United States v. Margolis, 3 Cir., 138 F.2d 1002. In this case defendant admits that he knew that he had subscribed the report (Government Exhibit 1-H) and that the notary public affixed her signature and seal, but he insists that he made no attempt to swear that the statements were true, and that he requested the privilege of filing a supplemental report.
Thus it appears from this definition that concealment includes, among other things, falsification. This court in Goetz v. United States, 7 Cir., 59 F.2d 511, held that failure to schedule an equitable interest in real estate the title to which was held by another was a concealment of such property. In United States v. Schireson, 3 Cir., 116 F.2d 881, 884, 132 A.L.R. 1157, the defendant, a bankrupt, was convicted for failure to schedule personal property which was in the deposit box of his wife.
Demand on the part of the trustee was not necessary, as urged, in order to establish concealment. Kalin v. United States, 5 Cir., 2 F.2d 58; Goetz v. United States, 7 Cir., 59 F.2d 511; United States v. Shapiro, 7 Cir., 101 F.2d 375. It is contended that the record does not show that appellant had actual knowledge of the appointment of the trustee [Cf. United States v. Yasser, 3 Cir., 114 F.2d 558], and that guilty knowledge is therefore not established. In the Yasser case the accused was charged with concealing property belonging to the estate of another.
Havener v. United States, 10 Cir., 49 F.2d 196. A motion for arrest of judgment reaches only defects of substance. Goetz v. United States, 7 Cir., 59 F.2d 511. It has further been held that an informal and imperfect allegation of essential fact should be deemed a sufficient averment of that fact when tested by a motion for arrest of judgment. United States v. Dimmick, D.C., 112 F. 352.
In anticipation of bankruptcy and of the election of a trustee, a person may conceal his property; and after bankruptcy, that is, after the creation of a bankrupt estate and the election of a trustee, concealment thus begun may be continued. If the facts show continued concealment, that is the offense denounced by the statute and that is the time of its commission". In Goetz v. U.S., 7 Cir., 59 F.2d 511, this court held that the statute was sufficiently broad to render any property of the bankrupt subject to concealment. See also Stern v. U.S., 3 Cir., 193 F. 888.