Drew v. United States
| Decision Date | 02 July 1928 |
| Docket Number | No. 358.,358. |
| Parties | DREW v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
Watts, Oakes & Bright, of Middletown, N. Y. (Abram F. Servin, of Middletown, N. Y., of counsel), for plaintiff in error.
Charles H. Tuttle, U. S. Atty., of New York City (Irving Spieler, Asst. U. S. Atty., of New York City, of counsel), for the United States.
Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
The plaintiff in error was indicted on four counts for unlawfully, willfully, and knowingly transporting stolen motorcars in interstate commerce from New Jersey to New York. He was convicted on the third count and acquitted on the others. U. S. Code, title 18, c. 9, § 408 (18 USCA § 408).
The statute declares it to be a crime to transport or cause to be transported in interstate or foreign commerce a motorcar, knowing the same to have been stolen. The offense of the third count was the transportation, in interstate commerce, from the state of New Jersey to Port Jervis, N. Y., of a Buick four-door sedan bearing the motor No. 1,544,210 and serial No. 1,515,477, knowing the same to have been stolen from a citizen of New Jersey. It was established to the satisfaction of the jury that this motorcar was stolen on May 8, 1926, while standing near a theater in Newark, N. J., and was later found, in June, 1926, and identified by its owner, as having been in possession and ostensible ownership of the plaintiff in error; he claiming to have sold it to his brother-in-law on the 20th of May, 1926.
As a witness in his own behalf, the plaintiff in error testified that he bought the car from one Maser, paying therefor in cash $750, and produced a bill of sale. The car had New Jersey license plates attached when it was delivered to him by Maser, which the plaintiff in error removed and returned to Maser. The ownership of the automobile was not transferred at the license bureau. He did not know who prepared the bill of sale, and stated that the name of his brother-in-law was put in the bill of sale by Maser. It was never transferred to him by an instrument of conveyance. The bill of sale had on it an assignment, dated June 19, 1926, by which date the ownership of the car was assigned to his brother-in-law. His brother-in-law testified that he received the bill of sale after purchase on May 20th, and that the plaintiff in error told him he got the car from the West Hudson Buick Company. Maser nowhere appears on the bill of sale, and, according to it, the car was sold to one Harry L. Martin, of Closter, N. J., on March 24, 1926, and the ownership assigned to the brother-in-law on June 19, 1926. There was no testimony from any agent or representative of the West Hudson Buick Company as to this transaction, nor was Maser called as a witness. The court submitted, as a jury question, whether or not, on all the evidence in the case, the plaintiff in error transported or caused the transportation of this motorcar.
The plaintiff in error argues that there was no evidence of transportation by him. It appears that the plaintiff in error was in possession of the stolen property in New York within 12 days after it had been stolen in New Jersey. This raised a presumption that he was the thief and had transported it to New York. In Boehm v. United States, 271 F. 454, we sustained a conviction where automobile tires, found near the plaintiff's house in November, 1919, were identified as stolen from a freight car in interstate commerce on February 15, 1919, and where, in June, 1919, the plaintiff made a sale of two of the tires at a much reduced price; they having been identified as the stolen tires. Whether or not this was recent possession by the plaintiff was considered a jury question. The presumption of guilt flowing from such possession grows weaker as the time of possession recedes from the time of the original taking. Here the short lapse of time, from the theft of the property until it was found in New York in the possession of the plaintiff in error, does not deprive such possession of the property of all its probative effect as a fact from which an inference of guilt of the plaintiff in error could be drawn by the jury.
In Commonwealth v. Montgomery, 11 Metc. (Mass.) 534, 45 Am. Dec. 227, bank bills of the Waltham Bank were stolen from the possession of their owner on December 5, 1845. Am...
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