Bennett v. United States, 7169.

• Decision Date: 27 February 1939
• Docket Number: No. 7169.,7169.
• Citation: 70 App. DC 76,104 F.2d 209
• Parties: BENNETT et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

70 App. DC 76, 104 F.2d 209 (1939)

BENNETT et al. v. UNITED STATES.

No. 7169.

United States Court of Appeals for the District of Columbia.

Decided February 27, 1939.

On Petition for Rehearing and Stay of Mandate May 3, 1939.

Harry T. Whelan and W. B. O'Connell, both of Washington, D. C., for appellants.

David A. Pine, U. S. Atty., and William Hitz, Jr., and Charles B. Murray, Asst. U. S. Attys., all of Washington, D. C.

Before GRONER, Chief Justice, and STEPHENS and EDGERTON, Associate Justices.

EDGERTON, Associate Justice.

Appellants were convicted of the felony of transporting stolen goods in interstate commerce. 18 U.S.C. § 415, 18 U.S.C.A. § 415.

Officers seated in a Washington restaurant saw Mr. Strohecker, a real estate dealer, stop at a booth in which defendants were seated, saw defendant James Bennett hand articles of jewelry to Strohecker, and saw Strohecker examine them. The officers did not know defendants, but apparently knew Strohecker. Strohecker presently told the officers that he did not know defendants either; that "they" were from New York, and had a lot of jewelry which they had offered to sell him; that the price was ridiculous, and that he therefore believed it was "hot." Within the next few days the officers, without a warrant, twice arrested defendant Eula Mae Bennett. After the first arrest she was searched. The second arrest was in her hotel room, which she opened to admit the officers. On both occasions jewelry which later proved to be stolen was found in her possession.

Appellants dispute the sufficiency of the evidence, and also assign as error "admitting in evidence property illegally seized." We need not consider whether the seizures were illegal, for appellants should have asserted their supposed rights in that regard before trial. The Supreme Court has held that "except where there has been no opportunity to present the matter in advance of trial * * * a court, when engaged in trying a criminal case, will not take notice of the manner in which witnesses have possessed themselves of papers or other articles of personal property, which are material and properly offered in evidence. * * *" It will not "halt in the orderly progress of a cause and consider incidentally a question which has happened to cross the path of such litigation and which is wholly independent of it. In other words, in order to raise the question of illegal seizure, and an absence of probable cause in that seizure, the defendants should have moved to have the whisky and other liquor returned to them as their property and as not subject to seizure or use as evidence." Segurola v. United States, 275 U.S. 106, 111, 112, 48 S.Ct. 77, 79, 72 L.Ed. 186.

Appellants contend there is no proof that a bracelet stolen in Connecticut was transported, as charged, from New York. They drove from New York to Washington, and then had the bracelet in Washington. It may be inferred that they brought it from New York, and not on some possible previous trip from Connecticut to Washington through Vermont, Canada, and Pennsylvania, or by sea. There is no basis for appellant's contention that Section 415 is limited to transportation for commercial purposes.

The evidence against James Bennett was so strong that we do not discuss it. It pointed to him not only as transporter but as thief. He was seen close to the time and place of one of the thefts, and the circumstances of the several thefts were strikingly similar. The evidence against Eula Mae Bennett was somewhat less strong, but the following testimony tended to fasten both interstate transportation and guilty knowledge upon her. She lived with James, in New York, as his wife. She made the trip to Washington with him in his car. In Washington he offered stolen jewelry for sale, in her presence, at prices which suggested that it was "hot." A ring and wrist watch stolen in New York were in her possession in Washington. She gave the police conflicting explanations of her possession of the ring; it was given her by Bennett, and it was given her by a doctor. She exercised her right to refuse to testify, and so the jury had the testimony of the police on this point without contradiction or explanation. Bennett gave her the ring, at least, before the trip to Washington. When he gave it to her, he laid several rings on a table and she selected that one as the prettiest of the lot. The trip to Washington was followed almost immediately by the transaction in the restaurant and the interviews with the police. What she knew then, she probably knew during the journey. It is probable that if Eula Mae had not previously, and therefore during the trip, been in James's confidence, he would not have offered the stolen jewelry for sale, at "hot" prices, in her presence. In our opinion the evidence as a whole justified the jury in finding beyond reasonable doubt that Eula Mae Bennett, as well as James Bennett, transported stolen articles in interstate commerce, knowing them to have been stolen.

According to police testimony Eula Mae Bennett was arrested, without a warrant, for "investigation," and was held on that "charge" for "quite some time." Investigation is not a charge. It may be that the police had probable cause to believe her guilty of a specific felony, and that her arrest was therefore lawful: we do not find it necessary to pass upon that point. But we deem this an appropriate time to say that confinement without a charge violates one of the important rights of the citizen.

Affirmed.

STEPHENS, Associate Justice (concurring in part, dissenting in part).

I concur in the opinion of the majority that, in view of Segurola v. United States, 275 U.S. 106, 48 S.Ct. 77, 72 L.Ed. 186, the admission in evidence of the property seized was not erroneous. I concur also in respect of the conviction of James Bennett.

I dissent in respect of the conviction of Eula Mae Bennett. I think that the evidence was sufficient to prove that she transported the ring and the wrist watch from New York to Washington, but I think it was insufficient to prove that at the time she was transporting them she had knowledge that they had been stolen. This is necessary under the statute. The only items of evidence which it can even be claimed are relevant to this issue of guilty knowledge are that: (1) Eula Mae Bennett had been living with Bennett; (2) he cast several rings down before her at the time she chose one; (3) she heard him in the restaurant offering jewelry for sale at ridiculously low prices; (4) she gave inconsistent explanations as to where she obtained the ring. The third and fourth items are after the transportation and are therefore no evidence that she knew at the time of transportation that the ring and wrist watch were stolen. The second item is no evidence of guilty knowledge unless at the time she had some other reason to believe that Bennett had come by the rings dishonestly. There is nothing in the record to show that she did. Offering a choice of gifts is not, without more, evidence of theft. The first item shows no more than a possible opportunity on her part to know of the activities of Bennett. I think these four items constitute far too flimsy a web to hold Eula Mae Bennett. The conviction could be sustained, I think, only upon a theory that the guilty knowledge of Bennett is to be imputed to the woman who was living with him as his wife. I think this untenable.

I am unable to concur in the view of the majority...