(after stating the facts as above). [1] It is earnestly argued that this indictment is duplicitous. The is misused. Duplicity in an indictment consists in the joinder of two or more distinct offenses in one count (Bishop, New Grim. Proc. vol. 1, § 432); and since the two perjuries here alleged are plainly describable as “two or more acts or transactions connected together,” the joinder of counts is explicitly permitted by Revised Statutes, § 1024 (Comp. St. § 1690).
[2] It is with equal vigor said that it was error to deny defendant’s motion to dismiss or direct at the close of the government’s case. What the trial court did was to “reserve decision” on the motion. Whatever this may have been thought to mean, it was in effect a denial of the motion; but the exception is not available, because the defendant proceeded, adduced evidence,' and so went into the whole case.
It is elementary that any defendant or accused who desires to rest upon his motion to dismiss or direct at the close of the plaintiff’s case or that of the prosecution must himself rest; otherwise he must renew his motion at Lhe close of all the evidence. The motion was renewed in this instance, but by the time all the evidence was in it is sufficient to say that there was a case for the jury. , '
[3] By common law, as well as by the words of the statute, per-j ury is committed (so far as it is here necessary to define it) by stating “any material matter which fthe accused] does not believe to be true.” It is in like maimer fundamental that the false statement be made with a corrupt intent; but this question is one solely for the jury. United States v. Smith, 1 Sawy. 277, Fed. Cas. No. 16341. When the evidence was all in, Epstein had admitted that he made the statement which is the subject-matter of the first count. The verdict establishes that he made it corruptly; but it remained for the prosecution to show that the statement, however made, was material.
“Materiality” is a word to be measured by surrounding circumstances. The object of the examination wherein Epstein committed this falsity was to procure information in respect of the “acts, conduct, and property” of the Locust Building Company, Incorporated, a bankrupt. It was therefore material to know what that company had done, what it had, and what had become of its belongings. We are wholly unable to perceive how or why Epstein’s reason for permitting the foreclosure of a mortgage (so far as we know of unquestioned validity) was or could be a “material matter” upon this inquiry. Therefore we are of opinion that the prosecution failed to prove the first count of the indictment.
*284In like manner the untruthfulness of the statement set forth in the second count in the indictment was admitted after it had been fully proven. Without going into the details of evidence we may admit (as claimed by plaintiff in error) that the evidence amounted to this: That Locust Company agreed to exchange a piece of its realty for certain other lots of land owned by Wagner Bros., but that the latter, instead of conveying as agreed to Locust Company, conveyed to Beta Company; but Beta Company, through Epstein as the president of both Beta and Locust, provided $10,000 for the use of Locust Company, as to which $10,000 Epstein testified, “I paid the creditors with it.” Whether he did anything of the kind was the ultimate issue litigated before the jury in this case, and the verdict is against Epstein.
[4] We are of opinion that the statement charged in the second count was most material to the matter to be investigated under Bankruptcy Act, § 21a. The false answer was calculated to delude and injure the creditors of Locust Company, and the explanation or excuse, viz. that in substance and effect the creditors of.Lcicust Company got the $10,000, did not, if true, mend the matter, except1 as it might show to the jury absence of corrupt intent. If false, the attempted excuse was an aggravation of the original falsity.
As to tire second count we think there was enough to go to the jury.
Some exceptions were taken to the charge of the court, but the charge must be considered as a whole, and upon the whole it was more favorable to the plaintiff in error than he had any right to expect, inasmuch as the trial judge (as we read the charge) left the jury with the impression that, if -the bankruptcy as a whole was an honest one, they ought not to convict Epstein.
Judgment on the second count is affirmed.