Balman v. United States, 10921.

• Decision Date: 19 January 1938
• Docket Number: No. 10921.,10921.
• Citation: 94 F.2d 197
• Parties: BALMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

94 F.2d 197 (1938)

BALMAN v. UNITED STATES.

No. 10921.

Circuit Court of Appeals, Eighth Circuit.

January 19, 1938.

Neil Hughes, of Minneapolis, Minn. (Jacob Garon, of Minneapolis, Minn., on the brief) for appellant.

William J. Quinn, Asst. U. S. Atty., of St. Paul, Minn. (Victor E. Anderson, U. S. Atty., and Linus J. Hammond, Asst. U. S. Atty., both of St. Paul, Minn., on the brief), for the United States.

Before STONE, WOODROUGH, and VAN VALKENBURGH, Circuit Judges.

VAN VALKENBURGH, Circuit Judge.

The defendant was convicted under the provisions of section 409, 18 U.S.C.A., for having in his possession certain furs which had been stolen while a part of an interstate shipment of freight, in transit and moving in interstate commerce, with knowledge that the same had been stolen.

For reasons hereinafter stated we find it unnecessary to enter upon a detailed recital of the evidence. The furs were stolen November 15, 1935. Defendant's testimony is that he came into possession of them the last of May, or first of June, 1936. The indictment charges the possession date as June 22, 1936. The goods were contained in a trunk which had been placed in a bedroom of defendant's house, and defendant claims it was left with him for safekeeping during a temporary absence of the alleged owner.

The specifications relied upon may be reduced to four in number. (1) Unlawful search and seizure; (2) insufficiency of the evidence; (3) denial of a requested instruction; (4) errors in the charge of the court. We shall consider these specifications in the order named.

1. The testimony is that both state and government officials were investigating this larceny, a criminal offense under both state and federal laws. Police officers acting upon information received by them entered defendant's premises, without being armed with a search warrant, and there found and seized the trunk containing the stolen property. No federal officer was present at the time. Federal agents had no knowledge of the whereabouts of the furs, gave no information to the police officers respecting them, and did not instigate nor participate in the search, which was conducted solely upon the initiative of the state officials. In such case evidence seized without search warrant by state officers, not acting in the federal government's behalf, is admissible in a federal prosecution, and this even though the defendant and the property seized be turned over to the federal authorities. Rettich v. United States, 1 Cir., 84 F.2d 118; Sloane v. United States, 10 Cir., 47 F.2d 889. The rule announced in Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; Gambino v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293, 52 A.L.R. 1381; Miller v. United States, 3 Cir., 50 F.2d 505, and United States v. Falloco, D.C., 277 F. 75, 82, upon which counsel for defendant rely, has no application to the situation here presented. In the Falloco Case the writer of this opinion said: "Merely because the jurisdictions are concurrent and that the subject-matter of the offense is identical, that, in fact, the two enforcement jurisdictions overlap, and that one jurisdiction may, if it sees fit, turn an offender over to the other for prosecution, all this is insufficient, standing by itself, to charge the officers and courts of the United States with excess of authority, if that be found to exist, on the part of state officers. The evidence thus secured, if pertinent, may be used." See, also, Crank v. United States, 8 Cir., 61 F.2d 981, and compare Adams v. New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575. This point is resolved against appellant.

2. The evidence in our opinion amply supports the verdict and judgment rendered and, since for reasons hereinafter stated the case must be remanded for a new trial, will not receive further consideration here.

3. At the conclusion of the charge the appellant requested an instruction to the effect that the mere possession of stolen property raises no presumption of guilt by itself. The request was refused and error is assigned. In the sense of a presumption of law this statement is correct, but the scope is too broad in that it omits the presumption of fact which is present where the possession is recent. We think there was no error in refusing the request as drawn and offered.

4. We come now to the first of the errors assigned to the charge of the court. This portion of the charge which is challenged is the following: "It is seldom possible to prove knowledge by direct evidence. We cannot look into a person's mind and ascertain what existed there at a given time. Generally it is necessary to show knowledge by acts and conduct. Therefore, in determining the question of knowledge you should take into consideration, not only the direct evidence bearing thereon, but all the facts relating to the...