263 F. 55 | 6th Cir. | 1920
The indictment contains four counts. The first count charges the defendant with breaking the seal of a railroad car containing an interstate shipment of freight with the intent to commit larceny. The second count charges the larceny of six automobile tires, a part of an interstate shipment of freight contained in this car and consigned to E. B. Booker, Holly Springs, Miss. The third count charges the larceny of two automobile tires, a part of an interstate shipment contained in this car, consigned to the Green Auto Company at Plolly Springs, Miss. The fourth count charges that they received and had in their possession property stolen from an interstate shipment, with knowledge of the fact that the same had been stolen. The jury found defendants guilty on all four counts. A motion for new trial was overruled by the court, and sentence imposed.
“If you have a reasonable doubt about the guilt of these defendants upon the whole proof, upon each count of this indictment, it is your duty to say they are not guilty; or if you have a reasonable doubt in your mind arising from this whole evidence that they are not guilty under either one of these counts, you should say that.”
And again, after counsel had called the court’s attention to the particular part of the charge relating to alibi to which counsel objected, the court said:
“Now, gentlemen of the Jury, I said to you a moment ago, and I repeat it now, that you may have the benefit of the repetition, if upon the whole case, either upon the alibi or upon the defendant’s explanation of how the property*58 came into their possession, there is a reasonable doubt whether these parties are guilty of the offenses, or one or more of them, charged against them, that reasonable doubt inures to the defendants, and you should give them the benefit of it, and that goes to the evidence touching the alibi, as well as the explanation.”
This charge correctly states the law applicable to this defense.
Exceptions were also taken to that part of the charge referring to knowledge of the defendants that the tires found in their possession were stolen. This, however, relates to the fourth count in the indictment, and counsel states in his brief, page 3:
"It might be well to state here that, upon motion for a new trial as to the fourth count in said indictment, said motion was sustained.”
On page 25 a similar statement is made. The printed transcript does not disclose that the motion was sustained as to the verdict of guilty on the fourth count of the indictment. However, it is probable that counsel did not deem it important to have that order of the court included in the transcript; but, in view of the statement in his brief, it is unnecessary to consider the part of the charge relating to that count.
Judgment affirmed.