Greenberg v. United States

• Decision Date: 07 March 1924
• Docket Number: 5957.
• Citation: 297 F. 45
• Parties: GREENBERG v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

297 F. 45

GREENBERG v. UNITED STATES.

No. 5957.

United States Court of Appeals, Eighth Circuit.

March 7, 1924

Harvey & Baer, of St. Louis, Mo., for plaintiff in error.

Allen Curry, U.S. Atty., and Claude M. Crooks, Asst. U.S. Atty both of St. Louis, Mo.

Before SANBORN and KENYON, Circuit Judges, and MUNGER, District Judge.

MUNGER District Judge.

The plaintiff in error, hereafter called defendant, was convicted of the offense of having unlawful possession in the city of St. Louis, Mo., of 82 pairs of shoes, which had been stolen from a railroad car in Illinois, and which had constituted a part of an interstate shipment of freight. It was charged that the defendant, at the time of his possession of the goods, knew them to have been stolen. Section 1, Act Feb. 13 1913, 37 Stat. 670 (Comp. Stats. Sec. 8603). There was conflict in the testimony given at the trial, but it was undisputed that the shoes had been stolen as alleged, and that the defendant, who lived in East St. Louis, in Illinois was at the shoe store of one Silverstein in St. Louis about 6:15 a.m. on September 10, 1920, and his automobile, with the shoes in it, was then standing in front of Silverstein's store. The goods were carried into the store, the defendant carrying them from the automobile to the door of the store and also carrying the last package of them into the store. Silverstein, for the government, testified that the defendant drove the automobile to Silverstein's store and offered the shoes for sale at a bargain, claiming that he was a jobber and was in need of money. He also claimed that he had never seen the defendant before. Silverstein testified that he purchased the shoes of the defendant, giving $100 in cash and a check for $50 in payment.

The defendant, as a witness, testified that he and Silverstein had been previously acquainted, and that Silverstein came to the defendant's place of business in East St. Louis, about 5 a.m., on September 10th, borrowed the defendant's automobile for the purpose of carrying some parcels to St. Louis, drove away, but soon returned with the automobile and having the shoes in it. Thereupon Silverstein asked the defendant if he would go to St. Louis with him and drive the car back from there, and offered to pay him well for doing it. The defendant consented, and according to his testimony they rode together in the car to Silverstein's place of business. The car was driven to the side and rear of Silverstein's store. The defendant stood at the front of the store for a short period, while Silverstein, who had gone upstairs where he resided, was endeavoring to find some keys to the store. The goods were then unloaded, and the defendant testified that he received the $50 check as payment for the use of his automobile, and drove it back to East St. Louis. There was some other testimony tending to corroborate portions of the testimony of both Silverstein and the defendant.

The defendant, at the close of the court's charge to the jury, orally requested the court to instruct the jury as to the caution with which they should regard the testimony of Silverstein as an accomplice. If the testimony on behalf of the government was true, Silverstein was not an accomplice of the defendant. No instruction was tendered. It must be left to inference whether the instruction desired would have stated as a matter of law that Silverstein was an accomplice, whether a conviction could not be rested upon his testimony, whether he must be corroborated, whether his testimony should be regarded with caution, or in what other respect the court should comment on his testimony. The defendant should have presented the specific instruction requested. Cincinnati Traction Co. v. Leach, 169 F. 549, 550, 95 C.C.A. 47; Holmgren v. United States, 217 U.S. 509, 524, 30 Sup.Ct. 588, 54 L.Ed. 861, 19 Ann.Cas. 778. While it is the better practice in a criminal prosecution to give an instruction cautioning the jury against too much reliance on the testimony of an accomplice, the failure to give such an instruction is not reversible error, and there is no absolute rule of law preventing conviction on such testimony. Caminetti v. United States, 242 U.S. 470, 495, 37 Sup.Ct. 192, 61 L.Ed. 442, L.R.A. 1917F, 502, Ann. Cas. 1917B, 1168; Diggs v. United States, 220 F. 545, 552, 136 C.C.A. 147; Wagman v. United States (C.C.A.) 269 F. 568, 571; Wallace v. United States, 243 F. 300, 307, 156 C.C.A. 80; Richardson v. United States, 181 F. 1, 9, 104 C.C.A. 69; Rachmil v. United States (C.C.A.) 288 F. 782, 785; Graboyes v. United States, 250 F. 793, 794, 163 C.C.A. 125; Tuckerman v. United States (C.C.A.) 291 F. 958, 963; Reeder v. United States (C.C.A.) 262 F. 36, 42.

The defendant claims the indictment states no offense against him, and that the overruling of a motion in arrest of judgment was therefore erroneous. The claim is that a charge of his unlawful possession of the stolen goods, knowing them to have been stolen, states no offense, unless it is also alleged that, at the time he received the goods, he knew them to have been stolen. The construction of the act of Congress contended for ascribes the purpose to Congress to make but one offense, that of receiving stolen goods, but the act expressly penalizes either the receiving or the having in possession of such goods with guilty knowledge. The defendant assigned error in the refusal of some instructions alleged to have been requested. The assignments of error, with one exception, fail to comply with rule 11 of this court, requiring the assignment of error to set out, totidem verbis, the instructions given or refused.

Errors not assigned according to this rule may be disregarded. The defendant asked an instruction that, if Silverstein hired the defendant's automobile to convey some property to St Louis, and later, while having possession of the automobile by hiring, reappeared with it, and the stolen goods were then in the automobile, and the defendant then learned in East St. Louis that the goods were stolen, 'the possession thereof was not the possession of the defendant, and his coming with the machine to St. Louis would not make it his possession; the possession of the stolen property remained exclusively in Silverstein. ' Other instructions asked were founded on the same theory. In order to understand the situation before the court when these instructions were asked, it should be stated that in addition to the facts assumed in the instruction there was evidence that tended to show that Silverstein, a shoe dealer in St. Louis, had borrowed the defendant's automobile at 5 o'clock in the morning, at East St. Louis, to take some parcels to St. Louis. There was no claim that any charge was to be made for this proposed use of the automobile. Silverstein drove away with the vehicle, and in half an hour returned with the stolen goods in the automobile. A hurried conference with the defendant occurred, and an arrangement was made for the defendant to go in the automobile with Silverstein a few miles into St. Louis, a distance that consumed only an hour and a quarter for the journey, and to drive back the automobile to East St. Louis. For this service Silverstein promised to pay the...