O'KELLEY v. United States, 11649

• Decision Date: 13 January 1941
• Docket Number: No. 11649,11651,No. 11652.,11649,11652.
• Parties: O'KELLEY v. UNITED STATES. TREADWAY v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

116 F.2d 966 (1941)

O'KELLEY v. UNITED STATES.

TREADWAY v. SAME.

Nos. 11649, 11651, No. 11652.

Circuit Court of Appeals, Eighth Circuit.

January 13, 1941.

Hugh Carney, of Atlanta, Tex., for appellant O'Kelley.

Bert B. Larey, of Texarkana, Ark., for appellant Treadway.

Clinton R. Barry, U. S. Atty., of Fort Smith, Ark. (Duke Frederick, Asst. U. S. Atty., and John E. Harris, Asst. U. S. Atty., both of Fort Smith, Ark., on the brief), for appellee.

Before GARDNER, WOODROUGH, and JOHNSEN, Circuit Judges.

GARDNER, Circuit Judge.

These appeals are in effect from three convictions. Appellants O'Kelley and Treadway, with six other individuals, were indicted for a conspiracy "to commit certain offenses against the United States and to do and commit certain acts made offenses by Section 409, Title 18, U.S.C.A., in and by unlawfully, knowingly, and feloniously breaking into and entering a certain railroad car, initialed and numbered Southern 14222, containing an interstate shipment of freight, to-wit, granulated sugar, which railroad car was on a side track of the Kansas City Southern Railway Company at Ravana, Arkansas and further to unlawfully and feloniously steal, take, and carry away from said railroad car and to conceal with the felonious intent to convert to their own use large quantities of said granulated sugar from said railroad car, which said sugar was moving as and which was a part of and which constituted an interstate shipment of freight and which had theretofore been shipped from the Southcoast Corporation, Mathews, Louisiana, and consigned to the Howe Wholesale Company, Ravana, Arkansas." Five overt acts alleged to have been committed by the defendants to effect the object of the conspiracy are set forth in the indictment.

Appellant Treadway was separately indicted in an indictment of two counts. The first charged him with the unlawful, wilful and felonious conversion, receipt, having in his possession, and concealment of seventeen 100-pound sacks of granulated sugar, stolen, taken, and carried away from the railroad car above described, then in the possession of the Kansas City Southern Railway Company on a side track at Ravana, Arkansas, it being alleged that the sugar constituted an interstate shipment of freight which had been shipped from Mathew, Louisiana, to the Howe Wholesale Company, at Ravana, Arkansas. The second count involved the same property, and charged the defendant with the unlawful, wilful and felonious transportation of it in interstate commerce; to-wit, from the vicinity of Ravana, in the State of Arkansas, to the vicinity of Atlanta, in the State of Texas, knowing that the sugar had been stolen from the interstate shipment of freight described.

The three cases were consolidated for purposes of trial. In the conspiracy case the Government dismissed as to one defendant; the jury acquitted another defendant and disagreed as to the guilt of four other defendants, but returned a verdict of guilty against appellants O'Kelley and Treadway. The jury also found appellant Treadway guilty on both counts of the indictment against him. From the judgments entered these appellants have filed separate appeals. We shall refer to the appellants as defendants, and we shall first consider the conspiracy case.

This indictment charges a conspiracy to violate Section 409, Title 18, United States Code, 18 U.S.C.A. § 409, which makes it unlawful to break the seal of any railroad car containing interstate or foreign shipments of freight, or to enter such car, with intent in either case to commit larceny therein, or to steal or take away from any such car goods or chattels which are moving or are a part of an interstate or foreign shipment of freight. Defendants, at the close of all the testimony, moved for a directed verdict of not guilty upon the ground, among others, that it appeared from the undisputed testimony that the shipment of sugar involved had lost its interstate character at the time the car was broken into. The refusal of the court to grant this motion is urged as error, and in our view of the case it will not be necessary to consider the other alleged errors.

On May 3, 1939, the Southcoast Corporation loaded into a Southern Railway Company car initialed and numbered 14222, in possession of the Kansas City Southern Railway Company at Mathew, Louisiana, 600 sacks of granulated sugar, with some other goods, and consigned it to Howe Wholesale Company, at Ravana, Arkansas. It was shipped on a non-negotiable bill of lading, the charges being prepaid. This box car, after being loaded, was properly sealed and was transported by the Kansas City Southern Railway Company from Shreveport, Louisiana, to Ravana, Arkansas, where it was set out on a spur track. Ravana, Arkansas, at the time of the transportation of this car of sugar, did not have a station agent. The conductor in charge of...