Kasle v. United States

• Decision Date: 13 June 1916
• Docket Number: 2730.
• Parties: KASLE v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

233 F. 878

KASLE v. UNITED STATES.

No. 2730.

United States Court of Appeals, Sixth Circuit.

June 13, 1916

[Copyrighted Material Omitted]

H. W Fraser and Marshall & Fraser, all of Toledo, Ohio, for plaintiff in error.

E. S Wertz, U.S. Atty., of Cleveland, Ohio, and John S. Pratt, Asst. U.S. Atty., of Toledo, Ohio.

Before WARRINGTON and DENISON, Circuit Judges, and HOLLISTER, District judge.

WARRINGTON Circuit Judge.

Kasle was convicted and sentenced under an indictment charging him with unlawfully and feloniously having in his possession certain goods and chattels, knowing them to have been stolen from a railroad freight station while in course of shipment in interstate commerce. A motion to quash the indictment was overruled. At the close of the evidence offered by the government, the defendant moved that the evidence be withdrawn and a verdict directed in his favor, and the motion was denied. Again at the close of all the evidence defendant renewed his motion for a directed verdict on the ground that there was no evidence to sustain the allegations of any of the counts of the indictment, which was granted as to the first count and overruled as to the second and third counts. Aside from the ruling upon the first count, exception was reserved and error assigned upon each of the rulings mentioned; and some twenty additional assignments are presented upon exceptions reserved in the course of the trial concerning rulings in admitting and rejecting testimony and certain instructions contained in the charge to the jury. Defendant prosecutes error.

1. The motion to quash the indictment is based on six grounds, the first four of which are in substance that at the time the goods and chattels are alleged to have been in defendant's possession it does not appear in any of the counts (a) that defendant knew they had been stolen, taken or carried away from interstate commerce, (b) that they were interstate commerce or a part thereof, (c) that they retained their character as an interstate shipment of freight, (d) that they had not lost their character as part of interstate commerce; and the two remaining grounds are (e) that the indictment and the counts respectively do not with sufficient certainty describe the offense charged so as fairly to inform defendant of its nature and of what he would be called upon to meet, and (f) that the indictment and counts do not state facts sufficient to constitute an offense against the United States.

The indictment is based on an act of Congress passed February 13, 1913 (37 Stat. 670). The applicable portion of this statute is as follows:

' * * * Whoever shall steal or unlawfully take, carry away, or conceal, or by fraud or deception obtain from any railroad car, station house, platform, depot, steamboat, vessel, or wharf, with intent to convert to his own use any goods or chattels moving as, or which are a part of or which constitute, an interstate or foreign shipment of freight or express, or shall buy, or receive, or have in his possession any such goods or chattels, knowing the same to have been stolen, * * * shall in each case be fined not more than $5,000 or imprisoned not more than ten years, or both.'

The indictment contains three counts; but as count 1 was in effect eliminated, as stated, it is necessary to consider only counts 2 and 3. Except as to dates of the offenses charged, the kinds and the points of origin and destination of the goods and chattels involved (the second count describing ten pigs of tin, comprising about 1,119 pounds, and the third, two barrels of scrap brass), the two counts remaining are alike; the second count is printed in the margin. ^[1] four grounds stated in the motion to quash will show these grounds to be without merit, since defendant was charged with knowingly, and so unlawfully and feloniously, having in his possession distinct goods and chattels which had been stolen, taken and carried away, from a named railroad station in Toledo, Ohio, while in course of shipment in interstate commerce between points named in the counts. It is true, as the first ground of the motion to quash states, that it is not charged that at the times the goods and chattels are alleged to have been in his possession defendant knew they had been stolen from interstate commerce

As we interpret the statute such an allegation is not necessary. One who knowingly receives stolen chattels must do so at the peril of their having been stolen while in course of interstate transportation; indeed it is not perceived why the thief should escape conviction under this statute just because he did not know the points of origin and destination. Manifestly both the receiver and the thief are chargeable with knowledge of the act of Congress forbidding this particular theft, quite as certainly as they are of a state statute prohibiting theft generally. The status of the articles, in the sense of being interstate or intrastate in character, cannot in the nature of things affect the fact either of the stealing or receiving alleged; and the statute, whether federal or state, is at bottom aimed against stealing or receiving. The most then that can be said of the object of allegation, as well as proof, touching the interstate character of the articles is to show the existence of the condition which brought the subject within the federal power and jurisdiction.

The last two grounds of the motion to quash, however, present some difficulties. Ownership of the goods and chattels described in counts 2 and 3 is not in terms laid in any particular person or company, either by absolute or qualified title, at the times the articles were severally alleged to have been 'feloniously stolen, taken and carried away from a certain railroad station house * * * known and described as the New York Central Terminal Freight Station. ' Neither the name of the owner of the station, nor any excuse for its omission, is to be found in the counts. Presumably the owner of the station held an interest in the goods and chattels which was sufficient for all purposes of the indictment. The rule is that specific ownership must be alleged and proved; but a special property, such as that of a bailee, carrier, or the like, in goods stolen, is sufficient for purposes of an indictment, say for larceny (2 East's P.C. 652; 1 Wharton Crim.Law, § 932; Wharton American Crim. Law, pp. 657, 658; Darter v. Commonwealth, 5 S.W. 48, 9 Ky.Law Rep. 277, 278; Commonwealth v. Finn, 108 Mass. 466, 468; Commonwealth v. Rubin, 165 Mass. 453, 454, 43 N.E. 200; Allen v. State, 134 Ala. 159, 165, 32 So. 318); and in this respect there is no difference in principle between the offense of larceny and that of receiving stolen goods (3 Bishop's New Crim. Procedure, Sec. 982); indeed, in his treatment of the subject of indictments for receiving stolen goods, Mr. Bishop says: 'The owner's name is essential in identification; hence to be stated if known' (Id. Sec. 983; State v. McAloon, 40 Me. 133, 135; State v. Polland, 53 Me. 124, 125; Miller v. People, 13 Colo. 166, 167, 21 P. 1025; Brothers v. State, 22 Tex.App. 447, 462, 3 S.W. 737; Zweig v. State (1913) 74 Tex.Cr.R. 306, 171 S.W. 747, 749); and the rule so laid down by Bishop is in effect recognized in Kirby v. United States, 174 U.S. 47, 61, 19 Sup.Ct. 574, 43 L.Ed. 809, where contention that the indictment was defective because it did not allege ownership by the United States of the stolen articles at the time they were alleged to have been feloniously received by the accused, was denied, but the reason given was that the indictment alleged the articles to be 'the property of the United States. ' The present counts 2 and 3 do, however, name the consignees of the goods and chattels in question, the name stated in the second being Union Steel Screen Company, and in the third, Koblitz, Kohn & Company; and ordinarily this would be sufficient for all purposes of identification of the articles in dispute and so of the indictment, since delivery to a common carrier is delivery to the consignee, in the absence of agreement to the contrary, even though the carrier is not designated by the consignee. Commonwealth v. Sullivan, 104 Mass. 552, 554. But here again objection is urged, and for the reason that the consignees' names are indefinite, in that they may be either corporations, joint-stock associations or partnerships. ^[2] An objection of this character, certainly as respects the present second count, was recently disallowed in Morris v. United States (229 F. 516, 520, . . C.C.A. . . ., and citations (C.C.A. 8)), when the court was considering an indictment based on the statute involved in the instant case and a failure to allege therein that the railway company, owning the car from which the property was stolen, was an incorporated company. We agree with the ruling there made, that in view of section 1025, Rev. Stat., such an allegation was unnecessary, since, as the court said (229 F. 520, . . . C.C.A. . . .): 'We are unable to see how that omission can have any tendency to the prejudice of the defendant. ' And see ruling of court in Burke v. State of Ohio, 34 Ohio St. 79, syl. 1, and opinion of the late Judge Okey, 81, 82

Furthermore since the consignee named in the third count, Koblitz, Kohn & Company, is seemingly a partnership, and since ownership of the property described is not laid in the name of any person purporting to be a partner, it may be well to look further into the statute itself. While such objections as we have been considering might be avoided, and ought to be, through careful preparation of indictments, still it is plain enough that the act of Congress here involved was not intended to require strict observance of either all the rules of the common law upon the subject of...