(dissenting).
I have no quarrel with the general principles of criminal pleading stated in the majority opinion. But it seems to me that two well settled principles are ignored, and that the conclusion is contrary to that reached by other Courts of Appeals that have been confronted with the particular point here involved. Accordingly I record my dissent.
1. That this indictment meets two of the three requisites of a valid indictment is not challenged. It states a public offense; a conviction or acquittal thereunder would bar a further prosecution. The broad language might bar a further prosecution for concealing any of the bankrupt’s personal property, and thus afford the defendant more protection than if the indictment were more specific. In any event, the rule is settled that where a charge is indefinite “it is the right of the accused to resort to parol testimony to show the subject-matter of the former conviction, and such practice is not infrequently necessary. United States v. Claflin, 13 Blatchf. *80178, 25 Fed. Cas. No. 14,798; Dunbar v. United States, 156 U. S. 185, 15 S. Ct. 325, 39 L. Ed. 390; Tubbs v. United States, 44 C. C. A. 357, 105 F. 59.” Bartell v. United States, 227 U. S. 427, 433, 33 S. Ct. 383, 385, 57 L. Ed. 583. To the same effect, see Connors v. United States, 158 U. S. 408,15 S. Ct. 951, 39 L. Ed. 1033, and United States v. Remington (C. C. A. 2) 64F.(2d) 386.
2. Tbe ease is reversed because the charge of concealing “personal property of said Pig Skin Davis, Incorporated, a corporation, of the tolal value of Seventeen Thousand Dollars'($17,000), a more particular description thereof being to the Grand Jurors unknown” was not sufficiently definite to enable the defendant to prepare for trial. If that be true — and it is the sole objection to the indictment — the remedy was to apply for a bill of particulars. An authority widely cited on the point is the clear statement of Justice Yan Devanter, while a Circuit Judge, in Rinker v. United States (C. C. A. 8) 151 F. 755, 759. The learned Justice said:
“When an indictment sets forth the facts constituting the essential elements of the offense with such certainty that it cannot be pronounced ill upon motion to quash or demurrer, and yet is couched in such language that the accused is liable to be surprised by the production of evidence for which he is unprepared, he should, in advance of the trial, apply for a bill of the particulars; otherwise it may properly be assumed as against him that he is fully informed of the precise case which he must meet upon the trial. 1 Bishop’s New Cr. Proc. § 643 et seq.; Wharton, Cr. PL & Pr. (9th Ed.) § 702 et seq.; Dunbar v. United States, 156 U. S. 185, 192, 15 S. Ct. 325, 39 L. Ed. 390; Rosen v. United States, 161 U. S. 29, 40, 16 S. Ct. 434, 480, 40 L. Ed. 606; Durland v. United States, 161 U. S. 306, 315, 16 S. Ct. 508, 40 L. Ed. 709; Dunlop v. United States, 165 U. S. 486, 491, 17 S. Ct. 375, 41 L. Ed. 799; United States v. Bennett, 24 Fed. Cas. 1,093, No. 14,-571; Tubbs v. United States, 44 C. C. A. 357, 105 F. 59.”
The objection sustained here was denied in Durland v. United States, 161 U. S. 306, 315, 16 S. Ct. 508, 512, 40 L. Ed. 709, Justice Brewer stating that “If defendant had desired further specification and identification he could have secured it by demanding a bill of particulars.” And in Kirby v. United States, 174 U. S. 47, 64,19 S. Ct. 574, 580, 43 L. Ed. 890, the question was reviewed in connection with a failure to aver from whom goods were stolen, and Justice Harlan, holding the indictment valid, said: “If it appears at the trial to be essential in the preparation of his defense that he should know the name of the person from whom the government expected to prove that he received the stolen property, it would be in the power of the court to require the prosecution to give a bill of particulars.” Judge John F. Phillips, speaking for the Eighth Circuit Court of Appeals, in answer to a similar claim, said that “The clear course for the defendant in such situation to pursue, for his proper protection against unpreparedness and surprise, is by timely motion to compel the prosecutor to furnish him with a bill of particulars.” These authorities were followed in May v. United States (C. C. A. 8) 199 F. 53, 61, certiorari denied, 229 U. S. 617, 33 S. Ct. 777, 57 L. Ed. 1353; Rimmerman v. United States (C. C. A. 8) 186 F. 307, 310; Cochran v. United States (C. C. A. 8) 41 F.(2d) 193,198; Lewis v. United States (C. C. A. 1) 295 F. 441, certiorari denied 265 U. S. 594, 44 S. Ct. 636, 68 L. Ed. 1197; Boyett v. United States (C. C. A. 5) 48 F.(2d) 482.
The indictment was returned on June 22, 1932. The trial commenced on October 25, 1932. No good reason is suggested why, if the defendant was in any doubt as to the charge against him, he did not ask fpr particulars during the intervening four months. Since the defendant testified he sold accounts of the corporation for $17,500 in cash and government bonds which he did not turn over to the receiver, the probabilities are he knew what was intended by “personal property of the value of $17,000.” He had the right to ask'for particulars, and did not do so. That was his remedy; he has no right to a discharge now on the ground that the indictment was fatally defective. Defense counsel, in the brief here, say they did not ask for particulars because “an indictment cannot be amended by a prosecuting attorney.” Quite so. But to make particular that which is general is not to amend an indictment; on the contrary it is the peculiar and only office of a bill of particulars.
3. We are enjoined by statute and controlling authority not to reverse judgments for errors which do not affect the substantial rights of the defendant. 18 USCA § 556; 28 USCA § 391. The decisions have long been in accord. In Armour Packing Co. v. United States, 209 U. S. 56, 84, 28 S. Ct. 428, 436, 52 L. Ed. 681, it was ruled:
“Had it been made by demurrer or motion, and overruled, it would not avail the defendant, in error proceedings, unless it appeared that the substantial rights of the ac*81cused were prejudiced by tbe refusal to require a more specific statement of the particular mode in which the offense charged was committed. U. S. Rev. Stat. § 1025 [18 US CA § 556]; Connors v. United States, 158 U. S. 408, 411, 15 S. Ct. 951, 39 L. Ed. 1033, 1034. There can be no doubt that the accused was fully advised of, and understood, the precise facts which were alleged to be a violation of the statute.”
And so here. Not only is the record barren of any evidence of prejudice, but the defendant does not even claim unfair surprise or inability to prepare for trial. He could not well do so wThen he testified to the diversion of $17,500 of corporate property, and when he made an elaborate defense based upon his right to appropriate such sum. Apparently every person connected with the transaction told their story at the trial. Charged with concealing “personal property of the value of $17,000” he could hardly have helped knowing that reference was made to the extraordinary sale for $17,500 made on the eve of bankruptcy, the proceeds of which he appropriated to pay an alleged purchase price of real estate for which he had already received payment in stock.
In the absence of any showing or even claim of prejudice because of the broad language, of the charge, the defendant should not be relieved from the consequences of the serious offense of concealing property from the representative of creditors who trusted him.
4. Rightly or wrongly, the courts appear to have made a distinction between the particularity necessary in indictments charging larceny, and in indictments charging a bankrupt with concealing property from his creditors. There may be a distinguishing circumstance in the fact that the bankrupt is ordinarily in possession of the bankrupt estate at the time the concealment takes place, and that the identity of the property concealed is more difficult of ascertainment than in larceny from one in possession. The District Court ease of United States v. Lynch, 11 F. (2d) 298, is in point and supports the majority opinion. The language of the majority opinion in Reimer-Gross Co. v. United States (C. C. A. 6) 20 F. (2d) 36, also supports the majority opinion.
On the other hand, the Sixth Circuit in Greenbaum v. United States (C. C. A.) 280 F. 474, held an indictment sufficient which described the property concealed as “consisting of money and merchandise to the value of $30,000.” In that case, the trial court overruled the demurrer to the indictment, but sustained a demand for a bill of particulars, and the Court of Appeals approved. The Fifth Circuit in Keslinsky v. United States (C. C. A.) 12 F.(2d) 767, 768, sustained an indictment which described the property concealed as “certain goods, wares, moneys, merchandise, shoes, and personal property.” In that ease an informal bill of particulars disclosed that the bankrupt was charged with the concealment of “some $8,000 or $10,000 worth of merchandise and cash.” The indictment in Kanner v. United States (C. C. A. 2) 21 F. (2d) 285, 286, identified the properly concealed as “certain moneys and properties then and there belonging to the estate in bankruptcy.” The evidence disclosed the disappearance of a large quantity of merchandise and cash just prior to the bankruptcy. The indictment was held good notwithstanding the fact that a bill of particulars was denied, the court expressly disapproving United States v. Lynch, supra. The Fourth Circuit in Saleeby v. United States (C. C. A.) 21 F. (2d) 713, 714, approved an indictment which identified the property concealed as “certain dry goods, clothings, shoes, trade fixtures, and other goods, wares, merchandise, and chattels.” In that ease a bill of particulars was furnished. The Eighth Circuit in Gerson v. United States (C. C. A.) 25 F.(2d) 49, 52, upheld an indictment which identified the property concealed as “merchandise of the value of $15,945.47, and the cash received from a sale thereof.”
The language of these indictments is of course not identical with the language of the indictment at bar, but I see no substantial distinction between the general language used and the general language of this indictment. Certainly the reasoning advanced by these courts is applicable to the ease at bar. Upon authority, as well as principle, the judgment of the trial court should be affirmed.
5. The majority opinion believes that it is scarcely conceivable that the grand jurors .were honest in the statement that they were not able more particularly to describe the property concealed. It is probably true that when the indictment was returned the grand jurors were advised that the defendant had converted certain accounts of the corporation into cash and negotiable securities of the United States. But the offense charged was not the conversion of these accounts, but the concealment of property from the receiver in bankruptcy at a later date. It is quite possible, and even probable, that when the indictment was returned the grand jurors were not advised as to whether the defendant had converted these liquid securities into *82other property between the date of their receipt by the bankrupt and the date of the appointment of the receiver. If the defendant had been charged with concealing the cash and specific securities which he. received, and it had then developed that between the date of their receipt and the date of the concealment, the defendant had turned the cash and securities into other property, the ease would have failed for lack of proof. I therefore see no ground for assuming that the grand jurors made a false return when they stated that they did not know what the defendant had done with the cash and securities between the date of acquiring them and the date of the appointment of the receiver.
I think the judgment of the trial court should be affirmed.