277 F. 771 | 7th Cir. | 1921
This is a writ of error to reverse a judgment of conviction against plaintiff in error under the fourth count of an indictment, which count is as follows:
“And the said 'grand jurors aforesaid, on their oaths aforesaid, do further present that Sam Cohen, * * * on, to wit, the 6th day of October, in the year of our Lord one thousand nine hundred nineteen, in the county of St. Clair, in the state of Illinois, in the Eastern district aforesaid, and within the jurisdiction of said court, did then and there unlawfully and feloniously have in their possession a large quantity of hides, to wit, thirteeu bundles of hides, then and there of the value of, to wit, six hundred ($600.00) dollars, with the unlawful and felonious intent then and there in them, the said Sam Cohen, * *' * to convert said hides to their own use, which said hides had lately theretofore been unlawfully and feloniously taken, stolen, and carried away from a certain railroad car bearing the initials and number, to wit, G. T. 102881, and which said hides, at the time they were so stolen as aforesaid, then and there constituted a part of an interstate shipment of freight consigned and in transit in interstate commerce from St. Louis, in the state of Missouri, to Cincinnati, in the state of Ohio, and which said hides and railroad cars, at the time the said hides were stolen as aforesaid, were in the possession of the President of the United States, by and through the Director General of Railroads, they, the said Sam Cohen, . * * * at the time of so having said hides in their possession, then and there well knowing the same to have been stolen, contrary to' the form of the statute in such case made and provided and against the peace and dignity of the United States.”
“The rule is that specific ownership must be alleged and proved; but a special property, such as that of a bailee, carrier, or the like, in goods stolon is sufficient for purposes of an indictment, say for larceny; * * * and in this respect there is no difference in principle between the offense of larceny and that of receiving stolen goods.” “Presumably the owner of the station held an interest in the goods and chattels which was sufficient for all purposes of the indictment.” Kasle v. United States, 233 Fed. 878, 883, 147 C. C. A. 552, 557 (6th Cir.).
See, also, Morris v. United States, 229 Fed. 516, 520, 143 C. C. A. 584 (8th Cir.); Fleck v. United States (C. C. A.) 265 Fed. 617 (8th Cir.); Grandi v. United States (C. C. A.) 262 Fed. 123 (6th Cir.).
From the evidence in the record and quoted in the brief of plaintiff in error, it is perfectly clear that there is no dispute whatever as to the identity of the hides, or as to where they came from, and that plaintiff in error was in no way surprised nor embarrassed in his defense.
“If one is able to understand this part of the charge, he must conclude that the trial court proceeded upon some notion of conspiracy.”
And again, in quoting» a portion of the charge, they say:
“Again, the court gave to the jury this additional and inexplicable part of his charge.”
If this is taken to mean, as counsel evidently intended it should be, that the instruction complained of could be neither understood nor explained, it is difficult to see how it could have in any way contributed to the conviction of the defendant.
There were two questions before the jury on the fourth count—one the question of possession; the other the question of knowledge as to whether the hides had been stolen. There were three other counts in the indictment, each involving, as in the fourth count, seven other defendants. The first charge was that of feloniously breaking into- a railroad car; the second, feloniously entering the car; the third, stealing and carrying away from the car the hides in question; and the instructions covered all of these counts and all the defendants. We are unable to discover any theory, from a reading of the whole charge, upon which the jury could have been misled to the injury of the plaintiff in error. The jury seems to have been fairly and fully instructed upon all material points.
The judgment is affirmed.