256 F. 519 | 3rd Cir. | 1919
The plaintiffs in error were convicted tinder an ind'.cluient which charged them with having violated an act approved on February 13, 1913 (37 Stat. 670, c. 50 [Comp. St. §§ 8603, 8604]), in that they feloniously had in their possession certain bars of copper which had theretofore been stolen, while constituting a part of an interstate shipment of freight, knowing the same to have been .stolen. The government’s evidence tended to prove that some time in the late afternoon or early evening of April 17, 1918, a car containing a large number of copper bars, which had been shipped from the state of Montana, destined for New York Harbor, while in transit over the lines and in the possession of the Lehigh Valley Railroad Company, was broken into near South Plainfield, N. J, and four of the ’ears of copper were stolen. The theft was discovered later in the evening, and two detectives in the employ of the railroad company were detailed on the case. They arrived in the vicinity of the place where it was presumed the robbery had taken place, in the early morning of Aoril 18th, and about 7 o’clock, after having searched for several hours, they discovered two of the stolen bars in a cemetery which was situated immediately adjacent to the railroad tracks and between them and a public highway. One of the detectives then went to South Plainfield to telephone for “relief,” and the other one secreted himself in a car, which was standing on the tracks some 200 or 300 feet away
As it would unduly burden this opinion to recite the facts in each of those cases, it will suffice to state that in each of them, before the stolen property reached the receiver, it had been recovered by the owner or his agent, and had actually been taken into his physical possession or that of his agent, and afterwards carried to the receiver, by either the original thief or the instrumentality through which the thief originally intended to convey it, at the express direction of the owner or his agent, for the purpose of entrapping the receiver, so that the property was actually delivered to the receiver by the authority ' of the owner and through his agency. The principle which underlay the decision in each of those cases was that such acts on the part
While we may readily concede that the principle invoked is a sound one, yet we are unable to perceive that it is applicable to this case; nor can we conceive how, in reason, it can be extended to cover a set of facts such as has been developed in this case. The detectives did not take or attempt to take the stolen copper in their possession; they did not exercise or attempt to exercise any control or dominion over it. The most that they did was to watch it, presumably to see what woidd happen to it, if anything, and to prevent its eventually being carried away, until the “relief” for which they had sent could arrive. The copper had not, therefore, come into either the actual or constructive possession of the owner. Indeed, before the detectives attempted to exercise any control over it, the defendants appeared upon the scene and took actual possession of it. Neither did the detectives cause, or attempt to cause, the property to be delivered to the defendants. Hence it did not come into the defendants’ possession by authority of the owner or through its agency. There is therefore missing from this case two elements which, manifestly, are necessary to bring the case within the principle of the before-cited cases. Consequently we do not think that the copper had lost its character of stolen property at the time the defendants took it into their actual possession. The remarks of one of the judges in Reg. v. Schmidt, supra, are very pertinent to the facts in this case. In discussing the question as to when the goods lost their character of stolen goods, he said:
“Suppose the policeman (who was acting for the owner and was in its employ), instead of opening the bundle, had simply watched it without saying anything to the porter (also the owner’s agent); surely then the goods would not have ceased to he stolen.”
This is precisely what the detectives did in this case. If their actions in this case could be said to have been a retaking of possession of the stolen property, so as to change its character as such, the difficulties in apprehending criminals in cases such as this would be immeasurably increased, and without reason. We are of opinion, therefore, that the learned trial judge committed no error in declining to direct a verdict.
Finding no error in the record, the judgment below is affirmed.