Boehm v. United States
| Decision Date | 09 February 1921 |
| Docket Number | 145. |
| Citation | 271 F. 454 |
| Parties | BOEHM v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
Thomas F. Rogers, of Corning, N.Y., for plaintiff in error.
Stephen T. Lockwood, U.S. Atty., and John T. Walsh, Sp. Asst. U.S Atty., both of Buffalo, N.Y.
Before WARD, HOUGH, and MANTON, Circuit Judges.
By the indictment in this prosecution the plaintiff in error is charged with--
'on the 22d day of February, 1919, did then and there knowingly wrongfully, unlawfully and feloniously, steal and purloin certain property and valuable things of the United States with intent to convert the same to his own use, to wit, eight (8) automobile rubber tires which were then and there in the custody and possession and control of the Delaware Lackawanna & Western Railroad of the United States Railroad Administration, in which tires the United States had a special property as bailee. * * * '
From a judgment of conviction, the plaintiff in error sued out this writ of error.
Stenographic notes of the testimony were not taken. A statement of the facts as testified to was agreed upon, and constitutes the record of the testimony adduced upon the trial. The plaintiff in error did not take the stand, nor did he offer evidence in his own behalf. He was jointly indicted with Theodore Spier his son-in-law. They were tried together and convicted. The evidence of guilt on the part of Spier was ample. The plaintiff in error, however, contends on this writ that the evidence was insufficient to require the submission of his guilt or innocence to the jury, and that the court committed error in failing to direct a verdict at the end of the proof.
There was evidence from which the jury might find that 8 automobile tires were consigned from Buffalo, N.Y., to a consignee at Coopers Plains, N.Y. The shipper was the B. F. Goodrich Rubber Company, and the tires were transported over the Lackawanna Railroad. A record of the numbers of 12 tires, which were shipped, was taken at the time of the shipment by a shipping clerk. The tires were contained in three bundles of 4 each. Two of these bundles were stolen. Each tire bore a serial number. Three of the bundles were received by the railroad company and put in the car of the Lake Shore & Michigan Southern No. 88018. Upon their arrival at Coopers Plains, N.Y., on February 15, 1918, they were put in the freight house by the railroad agent. Upon his arrival the next morning, he found that a burglary had been committed and 8 of the tires were stolen. An investigation was then instituted by the railroad detectives, and one of the defendants, Spier, was interviewed. He admitted the theft. His confession was reduced to writing and was used against him upon the trial. It involved the plaintiff in error. However, when it was received upon the trial, the jury was cautioned it could only be received against Spier, and could not be used or considered against the plaintiff in error.
It appears that after interviewing the codefendant, Spier, the officers visited the farm of the plaintiff in error and there were shown, by Spier, three of the tires lying some distance from the plaintiff in error's house and near a well. A witness called stated that he purchased a tire from the plaintiff in error similar in size and appearance to the one that was stolen. This tire was sold for $10, very much below the market value. The same witness later bought another tire from the plaintiff in error and gave therefor two pairs of shoes. The sale of these tires was made at plaintiff in error's farm at Hornby, N.Y., where the three tires which were pointed out by Spier to the officers, were found. They were hidden under a pile of brush near a well about 150 feet from the house. The serial number on one of these tires sold by plaintiff in error was completely abraded and on the other partially abraded. They were identified to some extent by an employee of the rubber company, who said that they were of similar kind to the shipment made.
We think this evidence required...
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...16 Ill.2d 82, 156 N.E. 2d 551, 556 (1959); Butz v. State, 221 Md. 68, 156 A.2d 423, 427-428 (1959). And compare Boehm v. United States, 271 F. 454, 457 (2d Cir. 1921) (possession of automobile tires for more than four months); State v. Brightman, 252 Iowa 1278, 110 N.W.2d 315, 317-318 (1961......
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