Le Fanti v. United States

• Decision Date: 14 June 1919
• Docket Number: 2477.
• Citation: 259 F. 460
• Parties: LE FANTI v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

259 F. 460

LE FANTI v. UNITED STATES.

No. 2477.

United States Court of Appeals, Third Circuit.

June 14, 1919

Louis Morten, of Jersey City, N.J. (Melosh & Morten, of Jersey City, N.J., of counsel), for plaintiff in error.

Charles F. Lynch, U.S. Atty., and Samuel I. Kessler, Asst. U.S Atty., both of Newark, N.J.

Before BUFFINGTON and WOOLLEY, Circuit Judges, and DICKINSON District judge.

DICKINSON District Judge.

The following outline statement of facts presents the questions involved in this writ of error:

The defendant in the court below was a saloon keeper. Two boys had stolen a bale of silk. This they took to Le Fanti's saloon, to be turned over to him. He was, in the slang of the underworld, the 'fence.' They had before brought silk to him, for which he had afterwards paid them $120, or some such sum. When they brought the bale with which we are now concerned, they told him they had 'another bale.' He warned them that he and his place was being watched, and directed them to take the bale to 'the dumps' and that he would follow them in his automobile to get it. He did follow and overtook them, and signaled them to go in the same direction he was going. Later on he signaled them to drop the bale, which they did, leaving it among some bushes or weeds. The boys then left the place, and the defendant returned to his saloon. The boys were taken into custody on their way back from the dump, and Le Fanti at his home. The silk was not found at his place, but was found where the boys had left it. There was no evidence that the stolen property had ever been in the actual, physical, personal possession of Le Fanti. The three were indicted jointly as receivers, and the guilty possession charged to be the possession of all. The stolen property was part of an interstate shipment, and no question of the federal character of the offense is raised. Le Fanti (who sued out this writ of error) was separately tried under the indictment; the other defendants not being at the time brought to trial.

The questions raised by the assignments of error (so far as they were raised at the trial) were raised by objections to the introduction of evidence, by motion to strike out evidence by motions for a directed verdict, by requests for charge and by exceptions to the charge of the court. The court afterwards, in order to give opportunity for a full argument of all the questions involved, allowed a rule to show cause why the verdict of conviction should not be set aside because of alleged errors. This rule was discharged, and the defendant sentenced. The opinion accompanying the discharge of the rule is reported in (D.C.) 255 F. 215. The propositions discussed by counsel for plaintiff in error will be considered in a different order from that of the several assignments of error on which they are based.

One suggested at the argument at bar (although not discussed beyond its mere statement) was that, where two or more persons are jointly indicted, charged with having the guilty possession of stolen property, the prosecution must prove a joint possession, in order to warrant the conviction of any of the defendants. We find no reference to this broad proposition in the printed brief submitted, and no trace of it in any trial ruling which the trial judge was asked to make, nor is the proposition in this broad form to be found made the basis of any of the assignments of error. In consequence we assume the point involved not to be now made. This may be because it was not made during the trial, or because the plaintiff in error is content with the disposition made of it by the court below is refusing the defendant a new trial. At all events, it is in this form not before us. There is presented, however, a proposition which, to some extent at least, involves this in an amended form. It is laid down in the printed brief in the following form:

'Where two or more persons are charged jointly with having the possession of stolen property, the prosecution must prove a joint possession in order to warrant the conviction of the defendants; if the proofs show a separate and successive possession, then only the first offender can be convicted of having such possession.'

The question which, in the view of counsel, is involved in the proposition thus formulated, is presented and discussed in several different forms. It is not entirely clear just what application the stated principle has to the facts of this case, nor, indeed, just how far the principle, as it is stated, is meant to go.

The argument proceeds upon the fact that the three persons indicted were jointly indicted, charged with the offense (stripped of its other features) of jointly receiving and having in their joint possession stolen property, etc., and upon the other fact that the proofs were that two of the defendants had stolen, and the other indicted defendant (the plaintiff in error) had received, and the conclusion reached is that 'the defendants' could not be convicted under this indictment of receiving, because the proofs showed, not a joint possession, but separate successive possessions. The argument admits, however, that the 'first offender can be convicted of having such possession.'

Just what application the proposition, as above stated, has to the facts of this case, is not clear. It is coupled with the second proposition that the possession of the thief cannot be also held to be the possession of a receiver. Neither this second proposition, whether well or ill founded, nor the proposition above quoted, has any relation to the facts of this case, otherwise than in their possible bearing upon the proposition which counsel has dropped.

The plaintiff in error is charged in the indictment to have been a receiver. He was not shown to have been the original thief. The only bearing of either of the points attempted to be made is, in consequence, that as the other defendants were proved to have been the thieves, if their possession as thieves (as the second proposition asserts) negatived their possession as receivers, there could be no joint possession as receivers in them and the plaintiff in error

This brings us to the proposition which we have described as dropped. It means that no one of a number of defendants jointly indicted as receivers can be convicted without proof of a joint possession, and is the equivalent of saying that good pleading would require that, in addition to charging all the defendants with having the stolen property in their possession, they should be further charged so as to meet all the possibilities of any two or more (less than the whole number) having such possession, or any one of them having the property in his sole and separate possession. This is so because (if the proposition be sound), if more than one be charged with the offense of receiving, and the proofs indicated that any one of them had not been a party to the possession, all must be acquitted, although the guilt of the others was clear. It...