Rosenthal v. United States
276 F. 714
9th Cir.
1921
Check Treatment
ROSS, Circuit Judge

(after stating the facts as above). As will be seen from the foregoing statement, the plaintiff in error was by the juiy found not guilty of having bought and received the cigarettes, but guilty of having them in his possession at the same identical time and place, and with the like knowledge in each instance of their having been stolen goods. The act of Congress upon which the indictment was based makes criminal the “buying, receiving or having in possession” stolen property, with knowledge of its stolen character. 37 Stat. p. 670 (Comp. St. §§ 8603, 8604).

It was practically conceded at the trial that the cigarettes were stolen from the railroad company by two of its employees. The evidence *715showed without conflict that the plaintiff in error was the active agent of the elder Rosenthal, who was his father, and conducted the transaction in question on his behalf with the thieves; and there was ample evidence given to sustain the verdict of guilty against the plaintiff in error under the second count. The difficulty is that there was but one transaction involved in the two counts of the indictment, which was based upon the statute mentioned, and, according to the evidence, but one transaction between the plaintiff in error and the thieves. By its verdict upon the first count of the indictment the jury found that the plaintiff in error neither bought nor received the cigarettes from them with knowledge of the theft, and by its verdict upon the second count that the plaintiff in error was at the same time and place in possession of the property with such guilty knowledge. The two findings were thus wholly inconsistent and conflicting. For this reason we feel obliged to reverse the judgment and remand the case for a new trial. See Morgan v. Devine, 237 U. S. 632, 639, 640, 35 Sup. Ct. 712, 59 L. Ed. 1153; Sections 1052, 1062, Bishop’s Criminal Law (8th Ed.).

Judgment reversed, and case remanded for a new trial.