Applebaum v. United States

• Citation: 274 F. 43
• Decision Date: 15 April 1921
• Docket Number: 2860.
• Parties: APPLEBAUM v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

274 F. 43

APPLEBAUM v. UNITED STATES.

No. 2860.

United States Court of Appeals, Seventh Circuit.

April 15, 1921

C. B Thomas, of East St. Louis, Ill., for plaintiff in error.

A. B Dennis, of Danville, Ill., for the United States.

Before BAKER, EVANS, and PAGE, Circuit Judges.

BAKER Circuit Judge.

Applebaum was convicted of having felonious possession of property stolen from an interstate shipment.

Complaint is made of the court's refusal to grant a continuance on account of the absence of a witness. No exception was taken and furthermore the court, with the district attorney's consent, permitted defendant to read to the jury as evidence a written statement of what the witness would have testified to if present. And as the government introduced no evidence to the contrary, the written statement stood as uncontradicted testimony.

Though the indictment charged that defendant, knowing the property to have been stolen, had 'unlawful and felonious possession,' defendant contends that the indictment is bad because it failed to allege that he had the property in his possession 'with the intention of converting it to his own use. ' No such conditioning element is found in the statute. Of course a person should not be condemned for having innocent possession of stolen property, for example for the purpose of turning it over to the true owner or to the public authorities. But a knowing possession for the benefit of the thief or any knowing possession with the intent and effect of depriving the owner of his property would be a felonious possession.

No exceptions were taken to the instructions, and defendant made no requests. It is conceded that the charge is correct as far as it goes, but the suggestion is offered that the jury may have been misled because the charge was not more explicit in places. If reversals may thus be obtained, refraining to ask explicit instructions would become a sure anchor to windward against convictions.

Defendant's real reliance for reversal is on the alleged insufficiency of the evidence.

For the government the evidence was largely circumstantial. From a broken-open car and the absence of goods shown to have been loaded therein, the jury, we must assume from their verdict inferred the theft. Railroad detectives testified to following wagon tracks from the plundered car into defendant's barnyard and to finding in defendant's barn property of the same kind and amount as that which had been stolen. When defendant, in his store at the front of the yard, was asked by the detectives concerning property missing from the railroad car, defendant, according to the detectives, was evasive until it became apparent that they knew of similar property in his barn. He then claimed that he had bought it of Weisman, a feed merchant. His attention was called to cinders among the feed. He then admitted that he had not obtained it from Weisman, but claimed that his horse and wagon had been taken during the night without his knowledge or consent, that he had found his rig in the barnyard in the early morning, that the feed was then in the wagon, and that he had put the feed in his barn to protect it. When asked why he had not notified the police, he replied that he had not had time, though the interview with the detectives was several hours after the feed had been put in the barn. And finally 'he wanted to...