Cartwright v. United States, 11019.
| Decision Date | 05 December 1944 |
| Docket Number | No. 11019.,11019. |
| Parties | CARTWRIGHT v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Russel A. Bonham and King C. Haynie, both of Houston, Tex., for appellant.
Brian S. Odem, U. S. Atty., and James K. Smith, Asst. U. S. Atty., both of Houston, Tex., for appellee.
Before HUTCHESON, WALLER, and LEE, Circuit Judges.
Charged in Count 1 with stealing several specifically enumerated, but not separately valued, articles, the property of the United States, with a total value in excess of $50, in violation of Section 82, 18 U.S.C.A.,1 and in Count 2 with receiving and concealing the same enumerated articles, then and there the property of the United States, with intent to convert them, in violation of Sec. 101, 18 U.S.C.A.,2 defendant was tried by the court on waiver of jury and found guilty as charged on both counts. Appealing from the judgment on that verdict, he is here insisting that it must be reversed as to both counts for failure of proof; as to Counts 1 and 2, that the property taken was the property of the United States; as to Count 1, that there was a taking as charged of property of a value in excess of $50; and as to Count 2, that the property concealed had been theretofore stolen by another person. We agree with appellant.
It is true that in his confession, appellant did say that he took "United States Government property from the lawful care and custody of the Lummus Lumber Co., knowing it to be United States Government property". But the proof established beyond the shadow of a doubt that he was mistaken in this and that the property taken was property of the Defense Plant Corporation. While, therefore, the proof shows that an offense has been committed within the purview of Sec. 82, that is a taking of property of a corporation in which the United States is a stockholder, it shows also that that offense was not the offense charged in the first count, "taking property of the United States". The government's position that this is a mere technicality since the United States beneficially owned the stock of the corporation, and, therefore, must be considered to be the owner of its property, will not at all do. The indictment statute recognizes, as the law generally does, the distinction between a corporation and the owners of its stock. The government, having chosen to allege that the property stolen was the property of the United States, did not discharge its burden of proof by showing, as it did here, that it was not such property, but that, on the contrary, it belonged to the Defense Plant Corporation. For the same reason it must be held that it failed to discharge its burden under Count 2 which charged that the concealed property was property of the United States, while the proof showed that it belonged to the corporation. Appellant's second point as to the first count, that the government failed to prove that, on or about the date named in the indictment, he feloniously took articles of a value of more than $50, is equally well taken. While the evidence does, we think, sufficiently show that the value of all the articles enumerated in the indictment as taken was in excess of $50, it conclusively establishes not that all of these articles were taken at one time, but that they were taken as the result of single or separate larcenies, and it is settled law that the value of things taken in separate larcenies can not be aggregated to make up one felonious larceny.3 The government's position that since the punishment imposed was not more than could be imposed for misdemeanor theft, the allegation that the articles had a value in excess of $50 should be treated as surplusage is not sound. Congress by statute passed in 1909, Sec. 541, 18 U.S.C.A., declared: , and it has been uniformly...
To continue reading
Request your trial
-
U.S. v. Gibbs, 86-1370
...that the value of the property defendant is charged with having taken be alleged and proved.' ") (quoting Cartwright v. United States, 146 F.2d 133, 135 (5th Cir.1944)) and Theriault v. United States, 434 F.2d 212, 214 (5th Cir.1970) ("For the offense ... to amount to a felony, there must b......
-
Garcia v. State, 88-205
...a thief cannot be charged with committing two offenses--that is, stealing and receiving the goods he has stolen. E. g., Cartwright v. United States, 146 F.2d 133; State v. Tindall, 213 S.C. 484, 50 S.E.2d 188; see 2 Wharton, Criminal Law and Procedure, § 576; 136 A.L.R. 1087. And this is so......
-
U.S. v. DiGilio
...is to be imposed. See United States v. Ciongoli, supra; United States v. Wilson, 284 F.2d 407 (4th Cir. 1960); Cartwright v. United States, 146 F.2d 133 (5th Cir. 1944); Stevens v. United States,297 F.2d 664 (10th Cir. 1961) (per curiam); Churder v. United States, 387 F.2d 825 (8th Cir. 196......
-
State v. Goins, 2005 Ohio 1439 (OH 3/21/2005)
...that a thief cannot be charged with committing two offenses—that is, stealing and receiving the goods he has stolen. E.g., Cartwright v. United States, 146 F.2d 133; State v. Tindall, 213 S.C. 484, 50 S.E.2d 188; see 2 Wharton, Criminal Law and Procedure, Section 576; 136 A.L.R. 1087. And t......
-
Searching for the "tail of the Dog": Finding "elements" of Crimes in the Wake of Mcmillan v. Pennsylvania
...that linking severity of punishment to the value of property requires proof to a jury, the Wilson court cites Cartwright v. United States, 146 F.2d 133, 135 (5th Cir. 1944) ("It is therefore well settled that where the grade of larceny, and consequently the punishment, depend on the value o......