Bloch v. United States

• Decision Date: 26 November 1919
• Docket Number: 3368.
• Citation: 261 F. 321
• Parties: BLOCH v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

261 F. 321

BLOCH v. UNITED STATES.

No. 3368.

United States Court of Appeals, Fifth Circuit.

November 26, 1919

C. B Hudspeth, Volney M. Brown, and Alfred J. Harper, all of El Paso, Tex., for plaintiff in error.

Hugh R Robertson, U.S. Atty., of San Antonio, Tex., and W. H. Fryer Asst. U.S. Atty., of El Paso, Tex.

Before WALKER, Circuit Judge, and FOSTER and GRUBB, District Judges.

GRUBB District Judge.

The plaintiff in error was convicted in the District Court for the Western District of Texas of the offense of receiving or having in his possession property stolen from an interstate shipment, knowing the property to have been stolen. The property consisted of 37 flasks of quicksilver shipped from Mendota, Cal., to New York City.

The sufficiency of the indictment is questioned for a number of reasons. The indictment is challenged because it does not sufficiently allege the ownership of the quicksilver. The shipment is alleged to have been made over an interstate railroad and during the period of government operation and control. The government was therefore a bailee of the property during its transportation. The court takes judicial notice of this status, and neither averment nor proof of it was required. Again, the designation of the name and address of the consignee, the date of the shipment, and the number and initial of the car from which the property was stolen, would seem to be a sufficient allegation of ownership, so far as the purpose of informing the defendant of the accusation against him, and its nature, required such averment. Kasle v. U.S., 233 F. 883, 147 C.C.A. 552. If it was held to be sufficient for that purpose in a case in which the goods were stolen from a railroad station, it would seem to be equally so for all practical purposes when they were alleged to have been taken from an identified railroad car. It would certainly serve to identify the shipment, so as to furnish the defendant the information needed by him to meet the government's case, and to enable him to plead former jeopardy, in the event of a subsequent prosecution for the same transaction. If it did so, it was sufficient to withstand objections, in view of the provisions of section 1025 of the Revised Statutes (Comp. St. Sec. 1691), which cures all technical defects in indictments. In any event the showing of government control and operation of the carrier at the time of the commission of the offense charged contained a sufficient showing of ownership, since possession as bailed was shown to be in the government of the United States.

The indictment is also criticized because it does not allege that the quicksilver was taken from the car without the consent of the owner. It does allege that it was stolen from the car, and this necessarily implies a taking without the owner's consent. It also sufficiently alleges that the quicksilver was part of an interstate shipment. It was not necessary to allege the legal status of the consignee, as to whether it was a partnership or a corporation, or to do more than give the initials and car number of the car from which the shipment is alleged to have been stolen. Kasle v. U.S., 233 F. 883, 147 C.C.A. 552. Section 1025, Revised Statutes, cures all technical defects in the indictment, if any exist.

The plaintiff in error cites the case Cohn v. U.S., 258 F. 356, . . . C.C.A. . . ., to the effect that the indictment was fatally defective, because it contained no averment that the defendant received and possessed the alleged stolen property 'with intent to convert it to his own use. ' The indictment in the case relied upon by plaintiff in error, however, was framed under section 48 of the Penal Code (Act March 4, 1909, c. 321, 35 Stat. 1098 (Comp. St. Sec. 10215)). That section contains the words alleged to have been improperly omitted from the indictment in this case in the definition of the offense. The indictment in this case was framed under the first section of Act Feb. 13, 1913, c. 50, 37 Stat. 670 (Comp. St. Sec. 8603). The pertinent language of this section is:

'Shall buy, or receive, or have in his possession any such goods or chattels, knowing the same to have been stolen.'

The omission of the words contained in section 48 from Act Feb. 13, 1913, distinguishes this case from that of Cohn v. U.S., supra, and from the case of Kirby v. U.S., 174 U.S. 47, 19 Sup.Ct. 574, 43 L.Ed. 890, which was based on an indictment framed under Act March 3, 1875, c. 144, 18 Stat. 479 (Comp. St. Secs. 10214, 10215), the language of which is identical with that of section 48 with respect to the intent to convert, and which words are, as we have said, omitted from Act Feb. 13, 1913. The indictment in this case adopts the language of the statute, and we think the use of the statutory language was enough. Receiving or possessing stolen property, knowing it to have been stolen, though the intent was to protect or benefit the thief, instead of the receiver or possessor, might well have been made punishable by Congress, and we think was so. In omitting the words contained in section 48 of the Penal Code, Congress broadened the offense by making the receipt or possession of stolen property punishable for any wrongful purpose, though that purpose was not to convert it to the use of the receiver.

The plaintiff in error objected to proof offered by the government that 11 flasks of quicksilver had been recovered from the possession of J. H. Taft in New York City. The ground of the objection was that the defendant was not connected by the proof with the 11 flasks. The 11 flasks were shown to have borne the same serial numbers as 11 of the flasks in the original shipment from Mendota, and so were identified as part of that shipment. They must have come into the possession of Taft, either through Haas Bros., the consignees, who received a part of the shipment, or from...