Backun v. United States, No. 4588.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtPARKER, SOPER, and DOBIE, Circuit
Citation112 F.2d 635
Decision Date10 June 1940
Docket NumberNo. 4588.
PartiesBACKUN v. UNITED STATES.

112 F.2d 635 (1940)

BACKUN
v.
UNITED STATES.

No. 4588.

Circuit Court of Appeals, Fourth Circuit.

June 10, 1940.


112 F.2d 636

G. L. Jones, of Asheville, N. C. (George Maislen, of New York City, and George H. Ward and G. L. Jones, Jr., both of Asheville, N. C., on the brief), for appellant.

W. Roy Francis, Asst. U. S. Atty., of Waynesville, N. C. (Theron L. Caudle, U. S. Atty., of Wadesboro, N. C., and William M. Nicholson, Asst. U. S. Atty., of Lincolnton, N. C., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal from a conviction and sentence under an indictment charging the appellant Backun and one Zucker with the crime of transporting stolen merchandise of a value in excess of $5,000 in interstate commerce, knowing it to have been stolen, in violation of the National Stolen Property Act, 18 U.S.C.A. § 415. Zucker pleaded guilty and testified for the prosecution. There was evidence to the effect that he was apprehended at a pawnshop in Charlotte, N. C., in possession of a large quantity of silverware, a portion of which was shown to have been stolen a short while before. He testified that he purchased all of the silverware from Backun in New York; that the purchase was partly on credit; that Backun had the silverware concealed in a closet and in the cellar of his residence; that there was no sale for second hand silverware in New York but a good market for it in the South; that Backun knew of Zucker's custom to travel in the South and was told by Zucker that he wished to take the silverware on the road with him; and that Backun sold to him for $1,400 silverware which was shown by other witnesses to be of a much greater value. A part of the silverware was wrapped in a laundry bag which was identified by means of a laundry ticket as having been in the possession of Backun. As bearing upon Backun's knowledge that the stolen silverware was to be transported by Zucker in interstate commerce, the following quotation from the testimony of Zucker is pertinent, viz.:

"Q. And you didn't discuss with him what you were going to do with it? A. He knows I go on the road.

"Q. You didn't discuss with him where you were going? A. I told him I wanted to go on the road with it. He knew that. That is the reason he wanted to sell it to me.

"Mr. Jones: I ask Your Honor to strike that out.

"Q. Did you discuss with him and tell him where you were going? A. Yes sir."

There is no serious controversy as to the evidence being sufficient to show that Backun sold the property to Zucker knowing it to have been stolen. It is contended, however, (1) that there is no evidence that Backun had anything to do with the transportation in interstate commerce, (2) that there is no sufficient evidence that the property shown to have been stolen was of a value of $5,000 or more, and (3) that the laundry ticket identifying the laundry bag in which the silverware was wrapped was improperly admitted in evidence.

On the question raised by the first contention, it is to be noted that the case presented is not that of a mere seller of merchandise, who knows that the buyer intends to put it to an unlawful use, but who cannot be said in anywise to will the unlawful use by the buyer. Cf. United States v. Falcone, 2 Cir., 109 F.2d 579. It is the case of a sale of stolen property by a guilty possessor who knows that the buyer will transport it in interstate commerce in violation of law and who desires to sell it to him for that reason. The stolen property was not salable in New York. Backun knew that Zucker could dispose of it on his visits to the Southern pawnbrokers and would take it with him on his trips to the South. The sale was made at a grossly inadequate price and Zucker was credited for a part even of that. While there was no express contract that Zucker was to carry the property out of the state, Backun knew that he would do so; and, by making the sale to him, caused the transportation in interstate

112 F.2d 637
commerce just as certainly as if that transportation had been a term of the contract of sale. As his will thus contributed to the commission of the felony by Zucker, he would have been guilty at common law as an accessory before the fact to the commission of the felony. 1 R.C.L. 144 et seq.; 16 C.J. 134. His guilt as a principal is fixed by section 332 of the Criminal Code, 18 U.S.C.A. § 550, which provides that one who "aids, abets, counsels, commands, induces, or procures" the commission of an offense is guilty as a principal, as well as by the terms of the Stolen Property Act itself which make it a crime to cause stolen property to be transported in interstate commerce

Whether one who sells property to another knowing that the buyer intends to use it for the commission of a felony renders himself criminally liable as aiding and abetting in its commission, is a question as to which there is some conflict of authority. See United States v. Falcone, supra. It must be remembered, however, that guilt as accessory before the fact has application only in cases of felony; and since it is elementary that every citizen is under moral obligation to prevent the commission of...

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43 practice notes
  • U.S. v. Hanafy, No. CRIM.A.3:99-CR-041-L.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • December 5, 2000
    ...Normally the Government points to evidence concerning specific goods included in the shipment. See, e.g., Backun v. United States, 112 F.2d 635, 638 (4th Cir.1940) (portion "shown to be stolen property" determined based on specific identification of parts of the 8. Section 2320 itself conta......
  • US v. Conley, Crim. No. 91-178.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 3, 1993
    ...one who knowingly furnishes such assistance to a criminal is punishable. Id. at 63. The omitted footnote cites Backun v. United States, 112 F.2d 635, 637 (4th Cir.1940) for the proposition that "`guilt as an accessory depends, not on `having a stake' in the outcome of crime ... but on aidin......
  • Record Revolution No. 6 v. City of Parma, Ohio, No. C80-38.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • April 14, 1980
    ...the innocent sale of ordinary items from their sale as drug paraphernalia. As the Fourth Circuit noted in Backun v. United States, 112 F.2d 635 (4th Cir. To say that the sale of goods is a normally lawful transaction is beside the point. The seller may not ignore the purpose for which the p......
  • Town Tobacconist v. Kimmelman
    • United States
    • United States State Supreme Court (New Jersey)
    • July 19, 1983
    ...since he could refuse to give the assistance by refusing to make the sale. [Comment, Article II, quoting Backun v. United States, 112 F.2d 635, 637 (4th Cir.1940) This interpretation further confirms the Act's applicability to the "innocent" retailer and accords with basic precepts of crimi......
  • Request a trial to view additional results
43 cases
  • U.S. v. Hanafy, No. CRIM.A.3:99-CR-041-L.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • December 5, 2000
    ...Normally the Government points to evidence concerning specific goods included in the shipment. See, e.g., Backun v. United States, 112 F.2d 635, 638 (4th Cir.1940) (portion "shown to be stolen property" determined based on specific identification of parts of the 8. Section 2320 itself conta......
  • US v. Conley, Crim. No. 91-178.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • September 3, 1993
    ...one who knowingly furnishes such assistance to a criminal is punishable. Id. at 63. The omitted footnote cites Backun v. United States, 112 F.2d 635, 637 (4th Cir.1940) for the proposition that "`guilt as an accessory depends, not on `having a stake' in the outcome of crime ... but on aidin......
  • Record Revolution No. 6 v. City of Parma, Ohio, No. C80-38.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • April 14, 1980
    ...the innocent sale of ordinary items from their sale as drug paraphernalia. As the Fourth Circuit noted in Backun v. United States, 112 F.2d 635 (4th Cir. To say that the sale of goods is a normally lawful transaction is beside the point. The seller may not ignore the purpose for which the p......
  • Town Tobacconist v. Kimmelman
    • United States
    • United States State Supreme Court (New Jersey)
    • July 19, 1983
    ...since he could refuse to give the assistance by refusing to make the sale. [Comment, Article II, quoting Backun v. United States, 112 F.2d 635, 637 (4th Cir.1940) This interpretation further confirms the Act's applicability to the "innocent" retailer and accords with basic precepts of crimi......
  • Request a trial to view additional results

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