271 F. 435 | 2d Cir. | 1921
On May 28, 1919, the Brennan Packing Company shipped from Chicago, Ill., to New York, 800 tierces of choice steam lard by way of the Erie Railroad Company. It was consigned to the order of the Brennan Packing Company, Cimard Line, account of Co-operative Wholesale Society. On June 4, 1919, 100 tierces arrived at Jersey City and were delivered aboard the steamship Mauretania and were transported to Liverpool. The remaining 700 tierces were placed on an Erie barge, No. 341, and remained on this vessel at Jersey City until-the night of June 17, 1919. On that night 334 tierces were stolen from barge No. 341, and on June 18, 1919, tlie balance of the shipment of 700 tierces, with the exception of 3, was delivered aboard the steamship Borenquin, and was subsequently carried to Liverpool. The 334 tierces stolen are the subject of the larceny here in question.
At the request of the plaintiffs in error, this lard was delivered to the Merchants’ Refrigerating Company on June 23 by a truckman whose name was given as McDonald. Two of the tierces were delivered at the purchaser’s store. The plaintiff in error Davidson accompanied the truckman to the Merchants’ Refrigerating Company, and there met the purchaser of the lard, and made a demand for payment of the trucking bill. They went to the purchaser’s place of business, and five $1,000 Liberty bonds were given in payment. One of these $1,000 bonds was given to the plaintiff in error Davidson, on account of the purchase price, and he gave the purchaser a receipt. After the lard was weighed and placed in the warehouse, the weights were figured out and returned to the plaintiff in error Davidson by the purchaser, at the restaurant. There the plaintiffs in error and the purchaser figured out the cost, and part payment was made in Liberty bonds, the balance by check on June 25th. The codefendants Feuer and Chapman later met the plaintiffs in error at the restaurant and made a division of the Liberty bonds. Contemporaneously with the sale of the stolen lard, as above narrated, the codefendants Feuer and Chapman made a sale to David C. Link Company of 350 tierces of lard. The same- truckman, who used a fictitious name, delivered 78 tierces to the Terminal Warehouses on June 25, 1920, and delivered in all 166 tierces. The balance sold by Feuer and Chapman were never delivered. The Liberty bonds given by the plaintiff in error Davidson to the truckman on June 23 to pay the trucking charges for this sale to the Link Company, is a charge for hauling 78 tierces.
The indictment contained four counts, naming as defendants, in addition to the plaintiffs in error, four others, Isidore Feuer, James Chapman, Albert G. Verkayk, and Morris Rosenblatt. The first count of the indictment charged conspiracy on the part of the six defendants to commit an offense against the United States and in violating the
The verdict of the jury established the guilt of Feuer, Chapman, and Verkayk on the second and third and fourth counts, and of the plaintiffs in error on the third and fourth counts. There was no report as to the guilt or innocence as to any defendants on the first count, nor was a verdict returned as to the plaintiffs in error on the second count. The defendant Morris Rosenblatt was acquitted.
The evidence in the case, some of which is narrated above, required llie submission of the question of guilt or innocence of the plaintiffs in error to the jury. After the rendition of the verdict, the District judge denied the motions of the plaintiffs in error to set aside the verdict. The verdict of guilt as to the plaintiffs in error is fully justified by the evidence, and the judgment below must be affirmed, unless there be error committed in the course of the trial.
The fourth count alleges that the same defendants did have in their possession the choice steam lard of great value, and which lard had theretofore been stolen when it was part of an interstate shipment of freight, and that the defendants had such knowledge. The names of the consignor and consignee are alleged in each count. Thus very essential element of the statute defining the defense was pleaded in the indictment. The statute (37 Stat. 670 [Comp. St. § 8603]) makes it unlawful to break the seal of any railroad car containing interstate or foreign shipments of freight or express, or to enter any such car .with the intent in either case, to commit larceny therein, and further:
“Whoever shall steal or unlawfully take, carry away or conceal, or by fraud or deception obtain from any railroad car, station house, platform, depot, steamboat, vessel or wharf with the attempt to convert to his own use any goods*438 or chattels moving as, or which are part of, or which constitute, interstate or foreign shipments, freight or express, or shall buy or receive, or have in his possession, any such goods or chattels, knowing the same to have been stolen, shall in each case be fined not more than $5,000 or imprisoned not more than ten years or both.”
But the contention is advanced that the third and fourth counts do not specify the.number of tierces. The indictment refers to them as “a large number of tierces of choice steam lard,” the number being to the grand jurors unknown. We think the indictment sufficiently alleges the offense as proven, and that the failure to specify the quantity was not a defect in the indictment such as to render it invalid. The defendants could, in advance of the trial, have obtained a bill of particulars setting forth the number of tierces stolen. There can be no doubt but that the plaintiffs in error knew exactly what they were charged with having wrongful possession of. The description in the indictment is so precise and full that they could easily use a judgment under this indictment as a bar to any subsequent prosecution.
It is further urged that the district judge committed error in not granting a motion to compel the government to state which transaction was meant to be covered by counts 2, 3, and 4 of the indictment— that is, the sale of the lard to Peter; and further error is alleged in permitting the evidence as to the Eink transaction to be submitted to the jury without limitation of its relevancy. The record does not disclose an objection to this testimony, nor was a motion or any request made by counsel for the purpose of limiting the testimony of the witnesses Wald and Thomstorff as to the sale .of the lard to the Link Company. But this evidence found in the bill of exceptions—and it does not contain all the testimony taken upon the trial—was admissible- in determining the guilt or innocence of the defendants as to the third and fourth counts.
There was but one shipment of lard and the evidence shows clearly a theft of 344 tierces. The same truckman hauled all the tierces which were sold and the orders for such trucking came from the plaintiffs in error. The plaintiff in error Davidson paid the truckman the entire trucking charges, and that included the cost of cartage of 102 tierces delivered to Peter, and 78 tierces delivered two days later to the Eink Company, after the purchase of it through Thomstorff. The indictment charged plaintiffs in error with the receipt and possession of all
We are satisfied that the evidence required the submission of the plaintiffs in error’s guilt to the jury and they have resolved the questions of fact against the plaintiffs in error and found them guilty. We find no error requiring our disturbing the judgment below in the various suggestions of error called to our attention.
The judgment is affirmed.