The decree of the lower court in No. 4218 will therefore be modified, in accordance with the views herein expressed, and, as modified, it will be affirmed; and the cross-appeal in No. 4223 will be dismissed. (220 Fed. 445) TAPACK et al. v. UNITED STATES. (Circuit Court of Appeals, Third Circuit. February 18, 1915.) No. 1881. 1. CONSPIRACY 28-OFFENSES AGAINST BANKRUPTCY LAWS-CONCEALMENT OF PROPERTY. Under Pen. Code (Act March 4, 1909, c. 321) § 37, 35 Stat. 1096 (Comp. St. 1913, § 10201), providing that if two or more persons conspire to commit any offense against the United States, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties shall be punished as therein provided, persons other than a bankrupt may commit an offense by conspiring with him to conceal his goods. [Ed. Note. For other cases, see Conspiracy, Cent. Dig. §§ 40, 41; Dec. Dig. 28.] 2. CONSPIRACY 43-OFFENSES AGAINST BANKRUPTCY LAWS-SUFFICIENCY OF INDICTMENT. Under Bankr. Act July 1, 1898, c. 541, § 29b (1), 30 Stat. 554 (Comp. St. 1913, § 9613), providing that a person shall be punished as therein provided upon conviction of the offense of having knowingly and fraudulently concealed, while a bankrupt, or after his discharge, from his trustee, any property belonging to his estate in bankruptcy, an indictment charging that defendants, knowing that two of them were insolvent and contemplating that they would be adjudicated bankrupts, in order to defraud the creditors of the prospective bankrupts, corruptly, wickedly, and unlawfully conspired to conceal the property of such bankrupts, and to continue to conceal it, after they should be adjudicated bankrupts, from the person to be appointed trustee, and that after the adjudication and appointment of a trustee they removed, secreted, and concealed such property, was not insufficient because of the failure to use the statutory words "knowingly and fraudulently" in describing the crime that was the object of the conspiracy, as the language used implied inevitably that the concealment was, and was intended to be, knowing and fraudulent, especially in view of Rev. St. § 1025 (Comp. St. 1913, § 1691), providing that no indictment shall be deemed insufficient by reason of any defect or imperfection in matter of form only which shall not tend to the prejudice of the defendant. [Ed. Note. For other cases, see Conspiracy, Cent. Dig. §§ 79, 80, 8499; Dec. Dig. 43.] 3. INDICTMENT AND INFORMATION 60-REQUISITES-ELEMENTS OF OFFENSES. In the interest of orderly procedure and for the full protection of a defendant's rights, an indictment must sufficiently set forth a definite crime, under penalty of being declared invalid, if an essential element be lacking. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 182, 266, 267; Dec. Dig. 60.] 4. INDICTMENT AND INFORMATION 75-REQUISITES-MATTERS OF FORM. The prevailing tendency is to be satisfied with substance in an indictment, rather than to insist upon a rigid adherence to form; and an indictment will be held good, if it substantially charges the particular offense for which the defendant is about to be, or has already been, tried. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 202-204; Dec. Dig. 75.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 5. CRIMINAL LAW 1159-APPEAL-REVIEW-QUESTIONS OF FACT. If there is any evidence to sustain a verdict that was proper to go to the jury, the verdict is conclusive. [Ed. Note. Dec. Dig. For other cases, see Criminal Law, Cent. Dig. §§ 3074–3083; 1159.] In Error to the District Court of the United States for the District of New Jersey; Thos. G. Haight, Judge. Louis Tapack and another were convicted of an offense, and they bring error. Affirmed. Merritt Lane, of Jersey City, N. J., for plaintiffs in error. J. Warren Davis, U. S. Dist. Atty., of Trenton, N. J., and Archibald Palmer, Sp. Asst. U. S. Dist. Atty., of New York City (William Hawkins, of New York City, of counsel), for the United States. Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges. J. B. MCPHERSON, Circuit Judge. The indictment in this case was found at January term, 1913, and charged five defendants with conspiracy under section 5440, R. S. (section 37, Penal Code of 1909). One of them was acquitted, and the other four, Jacob Torem, Samuel Moore, Louis Tapack, and Nathan Tapack, were convicted. Of these the last two have taken the present writ of error. In the District Court the sufficiency of the indictment was challenged by motions to quash, for a directed verdict, for a new trial, and in arrest of judgment, and this subject has been urged upon our attention with special earnestness. In substance the indictment avers that the five defendants unlawfully conspired, etc., to commit an offense against the United States, and then proceeds to describe the crime as follows: On and before September 27, 1912, Torem and Moore were silk manufacturers who had become insolvent and unable to meet their obligations, as all the defendants well knew; they were all contemplating and expecting that Torem and Moore would be adjudicated bankrupt, and a trustee be appointed; the bankrupts had certain property (describing it) which would pass to the trustee in case of the expected adjudication; whereupon all the defendants, "in order to defraud the creditors of them, the said Jacob Torem and Samuel Moore, copartners," etc., "did corruptly, wickedly, and unlawfully conspire," etc., "that the said Jacob Torem and Samuel Moore, copartners," etc., "should conceal the said property, and should continue to conceal the same after they should be adjudicated bankrupts, so contemplated," etc., from the person thereafter to be appointed trustee. The indictment further avers the subsequent adjudication and the appointment of a trustee, and sets forth as the overt act that on the next day, September 28, all the defendants did remove the goods described, and did "secrete and conceal the said property, and still secrete and conceal the same," from the trustee. [1-3] That other persons than a bankrupt may commit an offense by conspiring with him that he shall conceal his goods is a proposition that does not seem to need discussion, in view of Cohen v. U. S. (C. C. A., 2d Cir.) 157 Fed. 651, 85 C. C. A. 113, and the analogous decision in Nemcof v. U. S. (C. C. A., 3d Cir.) 202 Fed. 911, 121 C. C. A. 269. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes See, also, U. S. v. Holte, 236 U. S. 140, 35 Sup. Ct. 271, 59 L. Ed. —, decided February 1, 1915. Indeed, we do not understand this position to be in serious dispute; the indictment is attacked mainly because it does not use the statutory words "knowingly and fraudulently" in describing the crime that was the object of the conspiracy. It is undoubtedly true that section 29b (1) of the Bankruptcy Act describes the crime as a knowing and fraudulent concealment, and if this indictment does not contain the fair equivalent of these words it is fatally defective. Upon the other hand, although the language of the indictment might have been improved in form or arrangement, section 1025, R. S., requires us to uphold it if the defect or imperfection did not tend to the prejudice of the defendants. Just how they have been prejudiced may be a matter of some doubt. They understood exactly with what crime the government believed them to be charged; during eight days the trial was conducted on the theory that the offense was conspiracy to conceal goods knowingly and fraudulently; and the judge submitted the question of that offense to the jury. Nevertheless we agree that, in the interest of orderly procedure and for the full protection of a defendant's rights, an indictment must sufficiently set forth a definite crime, under penalty of being declared invalid if an essential element be lacking. [4] In earlier days, when excellent reasons existed for construing an indictment strictly so as to favor life and liberty, it is probable enough that such an indictment as this might have been held deficient. in precise statement; and, indeed, some comparatively recent decisions still reflect something of the earlier spirit. But there can be no doubt that the prevailing tendency now, both in statute law and in decision, is to be satisfied with substance rather than to insist upon rigid adherence to form; an indictment will be held good if it substantially charge the particular offense for which the defendant is about to be, or has already been, tried. Burton v. U. S., 202 U. S. 344, 26 Sup. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 362; Dunbar v. U. S., 156 U. S. 195, 15 Sup. Ct. 325, 39 L. Ed. 390; McNiel v. U. S., 150 Fed. 82, 80 C. C. A. 36; State v. Stein, 48 Minn. 466, 51 N. W. 474; State v. Smith, 63 Vt. 201, 22 Atl. 604; Worsham v. Murchison, 66 Ga. 715. Tested by this standard, we think the indictment before us should be sustained. Knowing the bankrupts' precarious situation, all the defendants are charged with having conspired "corruptly and wickedly" to bring about the concealment, and the object of the conspiracy is stated to be "in order to defraud the creditors of Torem and Moore." In our opinion this language inevitably implies that the concealment. of the goods was, and was intended to be, knowing and fraudulent; the conduct of a defendant cannot be innocent, and at the same time be corrupt and wicked, aiming at the commission of fraud. We think the language just quoted qualifies from first to last the whole description of the conspiracy. Nothing need be read into the indictment to produce this result; the words are already there, and if their arrangement were slightly different, even the criticism that is now being considered would be fully answered. Without further discussion, we overrule the assignments of error that question the sufficiency of the indictment. [5] The only other matter that calls for consideration is the argument that the evidence should not have been submitted to the jury at all. It is hardly necessary to say that the verdict is beyond our power; if there is any evidence to sustain it that was proper to go to the jury, the finding of that tribunal is conclusive. Humes v. U. S., 170 U. S. 210, 18 Sup. Ct. 602, 42 L. Ed. 1011; Burton v. U. S., supra. Without discussing the testimony contained in this record of 650 pages, but after careful consideration of all the arguments, we are of opinion that the learned trial judge committed no error in refusing to give the binding instruction that was asked for. The trial was fair and the charge was adequate; the verdict is not the subject of review. The judgment is affirmed. (220 Fed. 448) PHOTO-DRAMA MOTION PICTURE CO., Inc., v. SOCIAL UPLIFT FILM CORPORATION. (Circuit Court of Appeals, Second Circuit. January 12, 1915.) No. 102. 1. COURTS 291 — UNITED STATES COURTS- - JURISDICTION CASES UNDER COPYRIGHT LAWS. Irrespective of citizenship, the federal courts have jurisdiction of suits to enforce rights under the copyright statutes. [Ed. Note. For other cases, see Courts, Cent. Dig. § 833; Dec. Dig. 291.] 2. COPYRIGHTS 39-EXTENT OF RIGHTS ACQUIRED-DRAMATIZATION. A copyright covering a novel gives the holder the exclusive right to dramatize the novel in the usual form, or in the form of a motion picture play. [Ed. Note. For other cases, see Copyrights, Cent. Dig. § 39; Dec. Dig. ~~~39.] 3. COPYRIGHTS 7-SUBJECTS OF COPYRIGHT-SEPARATE DRAMATIZATIONS. Under the Copyright Act, as amended in 1912, the rights to dramatize a novel in the usual form and in the form of a motion picture play are separable, and there may be a copyright for each dramatization. [Ed. Note. For other cases, see Copyrights, Cent. Dig. § 5; Dec. Dig. ~~7.] 4. COPYRIGHTS 46-ASSIGNMENTS-FAILURE TO RECORD-EFFECT. Under Copyright Act, § 44, providing that every assignment of copyright shall be recorded in the copyright office within three months after its execution, in default of which it shall be void as against any subsequent purchaser or mortgagor for a valuable consideration without notice, whose assignment has been duly recorded, an unrecorded assignment of the motion picture rights in a copyrighted novel was void as against a subsequent assignee without notice, whose assignment was duly recorded. [Ed. Note. For other cases, see Copyrights, Cent. Dig. § 44; Dec. Dig. 46.] 5. COPYRIGHTS 47-ASSIGNMENTS-FAILURE TO RECORD-NOTICE. Where an assignee of the moving picture rights in a copyrighted novel was told by the assignor that he had licensed T. to reproduce the story as a drama, but that he had not assigned the motion picture rights, the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes assignee was not charged with notice that the motion picture rights had been assigned to T. [Ed. Note. For other cases, see Copyrights, Cent. Dig. § 45; Dec. Dig. 47.] 6. COPYRIGHTS 36-EFFECT OF COPYRIGHT ON LITERARY RIGHTS. One obtaining a statutory copyright of a book or play has no commonlaw literary property rights left, notwithstanding Copyright Act, § 2, providing that nothing therein shall annul or limit the right of the author or proprietor of an unpublished work, at common law or in equity, to prevent the copying, publication, or use of such unpublished work without his consent, and to obtain damages therefor, as that section is intended only to indicate that the statute does not displace the common-law right. [Ed. Note. For other cases, see Copyrights, Cent. Dig. § 37; Dec. Dig. 36.] Appeal from the District Court of the United States for the Southern District of New York. This cause comes here upon appeal from an interlocutory order granting a preliminary injunction restraining defendant from making, selling, etc., motion pictures based upon the book or novel entitled "The House of Bondage." The opinion of the District Court will be found in 213 Fed. 374. H. R. Guggenheimer, of New York City, for appellant. Before LACOMBE, COXE, and WARD, Circuit Judges. LACOMBE, Circuit Judge. [1-3] The suit is brought to enforce complainant's rights to exclusive production of certain motion pictures, under the provisions of the United States copyright statutes. Of such an action, irrespective of citizenship, the federal courts have jurisdiction. The facts shown are as follows: One Kauffman wrote a novel, entitled "The House of Bondage." He assigned his right to copyright the same to Moffatt Yard & Co. Moffatt Yard & Co. duly secured copyright. That gave them exclusive rights. to publish and sell the novel; also to make dramatizations of it, whether in the usual form for acting on the stage of a theater, or in the more recent form of a motion picture play. Moffatt Yard & Co. assigned all dramatization rights to Kauffman. He then had exclusive right to make dramatizations of either kind. Moreover, since the amendment of the Copyright Act (in 1912, passed subsequent to the Kalem Case, 222 U. S. 55, 32 Sup. Ct. 20, 56 L. Ed. 92, Ann. Cas. 1913A, 1285), these rights were separable; there might be a copyright for a dramatization of the old sort (acted on a stage), and also a copyright for a dramatization of the new sort (arranged in motion pictures). Kauffman on April 30, 1913 (or possibly July 12, 1913), made an assignment to one Totten. It is contended that this covered his "exclusive dramatic rights, including moving picture rights." The preamble to the written assignment submitted to him by Totten so states, but the phraseology of Kauffman's letter of July 12, 1913, in which he agreed to the assignment, leaves it doubtful whether he intended to include anything except a drama, which Totten had written founded For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |