174 F.2d 618 | 9th Cir. | 1949
The indictment in this case charges embezzlement by employee of a carrier under the 1946 amendment of 18 U.S.C.A. § 409,
“ * * * being an employee of any carrier riding in, on or upon any railroad car, motortruck, steamboat, vessel, aircraft, or other vehicle of such carrier transporting passengers or property in interstate or foreign commerce and having in his custody funds arising out of or accruing from such transportation, embezzle or unlawfully convert to his own use any such funds; * * ”
The appellant pleaded not guilty, waived jury, and was tried by the court. The judge found defendant guilty and placed him on probation. It is the contention of the appellant that no crime was charged under the allegations of the indictment or committed under the admitted facts.' The appellant was an employee of the Railway Express Agency, driving a truck in and about San Francisco, distributing freight from railroad yards to consignée. On each of two occasions, appellant delivered a shipment originating in another state to the consignee and collected charges arising out of and accruing from such transportation, and thereafter embezzled such funds. It was not charged nor proved that the vehicle was moving in interstate or foreign commerce at the time of the conversion of the funds. It was not alleged nor proved that appellant was riding in, on or upon any motor truck of the carrier at the time he had in custody and converted the 'funds to his own use. It was not alleged nor proved
Although property is still in transportation in interstate commerce until delivery to the consignee, thereafter it is not in interstate commerce at all. The coverage of criminal statutes cannot be supplied by implications. While Congress could have made it a crime to convert such funds arising out of an interstate shipment unconditionally, as was the case of the section relating to “officers” of the carrier,
Therefore, the acts thus denounced were neither charged in the indictment nor proved in fact.
There was one salient circumstance of consequence which was never called to the attention of the learned trial judge. The intention of Congress, as shown by the wording of the statute, was not to extend control of the funds arising out of interstate shipment in this type situation. In the revision of this section,
But whether this he true or no, neither allegation nor proof brought the acts of appellant within the language of the statute, even if given the broadest construction possible. While the trial judge placed appellant on probation and gave him most lenient treatment, considering the moral elements involved, we are constrained to hold no crime under the statute then in force was charged or committed.
The cause is remanded with direction to dismiss the indictment.
CO Stat. 656, Public Law 584, c. 606 [now 18 U..S,C.A; § 660].
38 Stat. 733, c. 323, § 9, then in effect as former 18 U.S.C.A. § 412 [now § 660].
18 U.S.C.A. § 660.