UNITED STATES v. KEMBLE
No. 10543.
United States Court of Appeals Third Circuit.
Submitted Jan. 22, 1952. Decided May 27, 1952.
197 F.2d 316
Grover C. Richman, Jr., U. S. Atty., Camden, N. J., and Alexander Feinberg, Asst. U. S. Atty., Newark, N. J., for appellee.
Before BIGGS, Chief Judge, KALODNER, Circuit Judge, and STEWART, District Judge.
BIGGS, Chief Judge.
The appellant, Kemble, was convicted on two counts of an indictment: first, for stealing on October 22, 1949, a case of whiskey in interstate transit and, second, for knowingly possessing a rifle which had been stolen from interstate commerce. The indictment was based on
Kemble contends that motions for judgment of acquittal should have been granted because the United States produced insufficient evidence of felonious intent to warrant his conviction on either count. He asserts also that the court below in its charge removed from the jury the right to consider possible bias in accomplices who had testified against him. He argues that the court was wrong in its refusal to charge that circumstantial evidence does not warrant a conviction unless the circumstances “exclude beyond a reasonable doubt every other supposition except that of guilt“,2 and finally he contends that the court below erred in refusing to charge that “Criminal intent necessary to complete the crime must be proved by the prosecution beyond a reasonable doubt.”3 Kemble does not contend, however, that the court below erred in its charge with respect to the requisite criminal intent to constitute the offense of theft of goods in interstate commerce. We make this statement for reasons which will appear hereinafter. The record contains ample evidence to support the jury‘s conclusion that Kemble both intended to steal the whiskey and that he knew that the rifle, which he admittedly possessed, was stolen.
The facts are as follows. In October 1949, Kemble was business agent for Local 676, Truck Drivers Union, A.F.L., in Camden, New Jersey. This employment, inter alia, required him to see that Schupper Motor Lines, whose home office is New York, employed only union drivers. Kemble was never in Schupper‘s employ and had not met Schupper until September 1949. Kemble did have title to a truck leased to Schupper, and in September he had performed a service for Schupper by finding a suitable terminal for his trucking concern at Pennsauken, New Jersey. By October Schupper was using this terminal. The terminal was managed by Cumberland, who had succeeded Crawford, Kemble‘s brother-in-law.4 These circumstances show that there was a business relationship between Kemble and Schupper, a status pertinent to Kemble‘s defense as will hereinafter appear.
On Saturday, October 22, 1949, Cumberland5 was called to an accident which had occurred early on the morning of that day on Route 25 near Pennsauken and in which a truck was damaged. Cumberland asked Kemble to help at the scene of the accident because “* * * he had more understanding of these things * * * ” and Kemble did so. At the scene of the accident Srymanske of the Pennsauken Township Police stated in a joking manner that it was too bad the truck did not contain whiskey. Kemble replied he would see what could be
Early in December 1949, a shipment of some 40 rifles consigned to Sears, Roebuck & Co., Philadelphia, came to the Pennsauken terminal on a Schupper Lines truck. The shipper was J. L. Galef of New York. The rifles arrived without any accompanying papers6 and Cumberland testified that he saw an opportunity for the theft of the rifles and that he did steal them.7 Cumberland stated that between six and seven o‘clock of the night8 before he stole them he spoke to Kemble about the chance to steal rifles and that the latter said, “Well, if you can get away with it, go ahead and take them.“, and that Kemble indicated his desire to have one of the rifles. Ballantine, a terminal employee, testified that he had helped unload the rifles at the terminal between 9:00 and 10:00 A.M. on a December morning9 and that Cumberland took the rifles at this time. Ballantine stated that Cumberland put the rifles in his own truck and “pulled the truck around to the side of the terminal.” Ballantine said it was Kemble who later informed him, Ballantine, that there would be trouble about the rifles and that he should return to Cumberland not only the rifle which subsequently had been given to him by Cumberland,10 but also that he should pick up another rifle which would be found at Kemble‘s home. Ballantine testified that he did as Kemble suggested. In addition Ballantine corroborated evidence given by Cumberland that Schupper had called a meeting of truck drivers, subsequent to the return of Ballantine‘s and Kemble‘s rifles to Cumberland. At this meeting Kemble addressed himself to all the terminal employees and requested information as to the whereabouts of the rifles.
Kemble himself admitted that he had given the whiskey to Srymanske. He stated, however, that it was Kerr, rather than he, who actually delivered the case to the policeman. Kemble also admitted he had possessed a stolen rifle but asserted he did not know it was stolen. The rifle had been left at Kemble‘s house by Cumberland with Kemble‘s wife as a “Christmas present“. Though Kemble‘s version disputes Cumberland‘s that the theft of the rifles had been discussed by Cumberland and himself prior to their actual stealing, Kemble did not deny that Schupper had informed him that rifles were missing or that he had attended the truck drivers’ meeting to which we have referred. Moreover he admitted he did not report the theft11 to the police until after Schupper had done so. Kemble insisted that he had Ballantine return the “Christmas present” as soon as he discovered its theft but he has offered no explanation of the silence he maintained toward Schupper during the period in which he knew that Schupper was looking for the missing rifles.
From the foregoing a jury might very well conclude that Kemble was guilty as charged. It is not disputed that Kemble gave Srymanske a case of whiskey in which he had no property right whatever or that the case was marked with the names of the consignor and consignee. We deem Kemble‘s admitted act to be sufficient to support
The evidence in the instant case discloses a man familiar with the transportation of goods in interstate commerce. The jury could have found that Kemble converted the case of whiskey, intending to steal it. Kemble asserts that he proved he intended no loss to the owner of the whiskey because he directed Kerr to send a note to Schupper that if he, Schupper, would not pay for the whiskey, he, Kemble, would. But the jury was at liberty not to credit this evidence. Had the jury believed it they would not have convicted Kemble for he would have been found lacking the mens rea necessary to complete the crime. We cannot say that the jury did not make a rational interpretation of the evidence before it.
We also encounter no difficulty in respect to the second count of the indictment, charging unlawful possession of the rifle. There is no doubt that Kemble possessed a rifle stolen in interstate commerce. Cumberland told Kemble that he would steal the rifles and Kemble expressed a desire to have one. This is sufficient to support a finding by the jury as to Kemble‘s actual prior criminal knowledge and connects him with the crime. Again, the issue was one of credibility for the jury.
Other assignments of error remain for discussion. One of these relates to the court‘s charge to the jury as to accomplices. Kemble contends that the court usurped the jury‘s function of passing upon the bias of witnesses by directing it to disregard any promise of leniency which might have been made by the United States to Ballantine and Cumberland. We set forth in the margin the portion of the charge complained of in this regard.12 We point out the court also charged the jury that “Accomplices when they give evidence against persons whom they claim committed the crime may be impelled to do so by motives which are inclined to pervert the truth. In other words, they may have reason for telling a lie, and it is your duty to give careful consideration to that question * * *,” and “Tainted as they are with confessed criminality, accomplices are often influenced in their testimony by the strong motive of hope of favor or pardon. Therefore, the jury should look carefully into secret motives which might actuate bad minds to draw in and victimize the innocent.”
It is clear the jury was told that any question of possible bias on the part of the witnesses was for their consideration and determination. When viewed in this light the portion of the charge complained of is a
Kemble next contends that the charge of the court as to the probative value of circumstantial evidence was incorrect. In United States v. Dolasco, supra, 184 F.2d at page 748, we stated, “The rule with regard to this type of evidence is that for a conviction the evidence must exclude every reasonable hypothesis of innocence.14 It may well be that the rule is archaic and based upon mistaken premises. It has, however, been reiterated many times in this and other circuits * * *” We suggest comparison of that portion of the rule as italicized above with the charge of the court in the instant case that circumstantial evidence “* * * must be such as to exclude every reasonable doubt of the guilt of the defendant * * *” and with the charge Kemble requested on this point, which was refused by the court. Kemble asked the court to charge that if the jury was to convict on circumstantial evidence such evidence must “exclude beyond a reasonable doubt every other supposition except that of guilt.” We are at loss to perceive any substantial difference in these formulations. Each clearly directs the jury not only to determine whether the circumstantial evidence in sum points to guilt but also whether it excludes any hypotheses on which innocence may be predicated. It is clear that if a jury excludes “every reasonable hypothesis of innocence“, or “every other [reasonable] supposition except that of guilt“, and finds the defendant guilty, the jury has found by a process of elimination that the evidence does not contain a reasonable theory of innocence. No further discussion is necessary on this issue.
Finally, the appellant complains of the failure of the court below to charge as requested that “Criminal intent necessary to complete the crime charged must be proved by the prosecution beyond a reasonable doubt.”15 The charge of the court on reasonable doubt is set out below.16 It is plain that the jury was instructed that all elements of the crime charged must be proved to the requisite degree of certainty. Since the element of intent is but one part of the whole, there was no error.
But another and more important issue remains for consideration, one which was not raised by Kemble on this appeal. In the court below Kemble took exception
This charge is inadequate in its definition of animus furandi, of a specific intent to steal. In United States v. Cohen, 3 Cir., 274 F. 596, 597, this court defined the statutory offense of stealing an interstate shipment to be the “unlawful taking and carrying away with intent to convert to the use of the taker and permanently deprive the owner.”17 As the Supreme Court has recently pointed out in Morissette v. United States, 342 U.S. 246, 271, 72 S.Ct. 240, 254, “Probably every stealing is a conversion, but certainly not every knowing conversion is a stealing.”
The court‘s charge stated (1) Kemble had no right to take the whiskey and give it away and (2) that if he did so, he was guilty as charged. An intent to convert is mentioned but its meaning is not explained. No mention is made of intent to deprive the owner, and it cannot be assumed the jury would infer that such an intent was implicit in an intent to convert. Kemble‘s defense was that he thought he was entitled to give away the whiskey. This amounts to a combination of a claim of mistake and a claim of right, which if believed by the jury, would have been sufficient to negative the specific intent which sustains the offense of larceny. Cf. United States v. Trinder, D.C., 1 F.Supp. 659, cited with approval at 342 U.S. 266, 72 S.Ct. 240. There is no evidence that Kemble actually did see the tag on the whiskey case, and, if Kemble‘s testimony be believed, it was Kerr rather than Kemble who handed the whiskey over to Srymanske. The jury could have concluded that Kemble made a mistake and thought that he was authorized to dispose of the whiskey and to reimburse Schupper for it.
The analogy presented by the Morissette decision is apt here. Morissette like Kemble did intend to convert. Morissette openly took, crushed and transported the casings. Kemble was open about his taking and appropriation of the whiskey. We conclude that the jury should have been required to find that Kemble possessed a specific intent to steal the whiskey. Not to have so charged the jury was error.
But was the error committed of so fundamental a nature that we should exercise the power provided by
Accordingly the judgment of conviction upon the first count will be reversed. The judgment of conviction on the second count will be affirmed.
KALODNER, Circuit Judge (concurring in part, dissenting in part).
I do not agree with the majority‘s view that the charge of the trial judge was inadequate. The trial judge read the complete text of the applicable statute to the jury as part of his instructions. The statute specifically provided that there must be an “intent to convert to his own use“. The reading of the statute as part of his instructions, where the language of the statute is “clear and concise” is sufficient. Wheeler v. United States, D.C.Cir., 1951, 190 F.2d 663. The phrase “with intent to convert to his own use” is one which the average layman could be expected to understand. Moreover, at another point in his charge, in referring to the statute the trial judge defined the word “stealing” as used therein as follows:
“Stealing commonly refers to larceny and larceny is the unlawful taking or carrying away of the goods of another with the intent to convert them to your use.” (Emphasis supplied.)
In my opinion the jury was clearly instructed that in order to find the defendant guilty on count 1 it had to determine that
I do not think that Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 242, is apposite. In that case the statute did not require existence or proof of “intent“. The Supreme Court held, nevertheless, that the intent must be proved. The second point involved in that case was that while the defendant testified that he had no intent to convert but thought that the articles were abandoned property, the trial judge specifically ruled as a matter of law that the defendant‘s state of mind and lack of intent “[was] no defense.”
For the reasons stated I would affirm the judgment of conviction upon the first count. I concur with the majority that there should be an affirmance of conviction on the second count.