Kirby v. United States, No. 164

• Court: United States Supreme Court
• Writing for the Court: HARLAN
• Citation: 43 L.Ed. 8,19 S.Ct. 574,174 U.S. 47
• Parties: 0 KIRBY v. UNITED STATES
• Docket Number: No. 164
• Decision Date: 11 April 1899

174 U.S. 47 19 S.Ct. 574 43 L.Ed. 8 0 KIRBY

v.

UNITED STATES.

No. 164. April 11, 1899.

A. G. Safford, for plaintiff in error.

Asst. Atty. Gen. Boyd, for the United States.

Mr. Justice HARLAN delivered the opinion of the court.

The plaintiff in error, Kirby, was indicted in the district court of the United States for the Southern division of the district of South Dakota, under the act of congress of March 3,

Page 48

1875, entitled 'An act to punish certain larcenies, and the receivers of stolen goods.' 18 Stat. 479, c. 144.

The first section provides that 'any person who shall embezzle, steal or purloin any money, property, record, voucher or valuable thing whatever of the moneys, goods, chattels, records or property of the United States shall be deemed guilty of felony, and on conviction thereof before the district or circuit court of the United States in the district wherein said offense may have been committed, or into which he shall carry or have in possession of said property so embezzled, stolen or purloined, shall be punished therefor by imprisonment at hard labor in the penitentiary not exceeding five years, or by a fine not exceeding five thousand dollars, or both, at the discretion of the court before which he shall be convicted.'

By the second section it is provided that 'if any person shall receive, conceal, or aid in concealing or have, or retain in his possession with intent to convert to his own use or gain, any money, property, record, voucher or valuable thing whatever, of the moneys, goods, chattels, records or property of the United States, which has theretofore been embezzled, stolen or purloined, such person shall, on conviction before the circuit or district court of the United States in the district wherein he may have such property, be punished by a fine not exceeding five thousand dollars, or imprisonment at hard labor in the penitentiary not exceeding five years, one or both, at the discretion of the court before which he shall be convicted; and such receiver may be tried either before or after the conviction of the principal felon, but if the party has been convicted, then the judgment against him shall be conclusive evidence in the prosecution against such receiver that the property of the United States therein described has been embezzled, stolen or purloined.' 18 Stat. 479.

The indictment contained three courts, but the defendant was tried only on the first. In that count it was stated that Thomas J. Wallace, Ed. Baxter, and Frank King, on the 7th day of June, 1896, at Highmore, within the jurisdiction of the court, feloniously and forcibly broke into a post office of the United States, and feloniously stole, took, and carried away

Page 49

therefrom certain moneys and property of the United States, to wit, 3,750 postage stamps of the denomination of two cents, and of the value of two cents each, 1,266 postage stamps of the denomination of one cent. and of the value of one cent each, 140 postage stamps of the denomination of four cents, and of the value of four cents each, 250 postage stamps of the denomination of five cents, and of the value of five cents each, 80 postage stamps of the denomination of eight cents, and of the value of eight cents each, and also United States treasury notes, national bank notes, silver certificates, gold certificates, silver, nickel, and copper coins of the United States, as well as current money of the United States, a more particular description of which the grand jury were unable to ascertain, of the value of $58.19; and that the persons above named were severally indicted and convicted of that offense, and had been duly sentenced upon such conviction.

It was then alleged that the defendant, on the 9th day of June, 1896, at the city of Sioux Falls, the postage stamps 'so as aforesaid feloniously stolen, taken, and carried away, feloniously did receive and have in his possession, with intent then and there to convert the same to his own use and gain, the said oe Kirby then and there well knowing the said postage stamps to have been theretofore feloniously stolen, taken, and carried away, contrary to the form, force, and effect of the statutes of the United States in such cases made and provided, and against the peace and dignity of the United States.'

At the trial of Kirby, the government offered in evidence a part of the record of the trial of Wallace, Baxter, and King, from which it appeared that Wallace and Baxter, after severally pleading not guilty, withdrew their respective pleas, and each pleaded guilty, and was sentenced to confinement in the penitentiary at hard labor for the term of four years. It appeared from the same record that King, having pleaded not guilty, was found guilty, and sentenced to the penitentiary at hard labor for the term of five years.

The admission in evidence of the record of the conviction of Wallace, Baxter, and King was objected to, upon the ground that the above act of March 3, 1875, was unconstitutional so

Page 50

far as it made that conviction conclusive evidence in the prosecution of the receiver that the property of the United States described in the indictment against him had been embezzled, stolen, or purloined. The objection was overruled, and the record offered was admitted in evidence, with exceptions to the accused.

After referring to the provisions of the act of March 3, 1875, and to the indictment against Kirby, the court, among other things, said in its charge to the jury: 'In order to make out the case of the prosecution, and in order that you should be authorized to return a verdict of guilty in this case, you must find beyond a reasonable doubt from the evidence in the case certain propositions to be true. In the first place, it must be found by you beyond a reasonable doubt that the property described in the indictment, and which is also described in the indictment against these three men [Wallace, Baxter, and King], who, it is alleged, have been convicted, was actually stolen from the post office at Highmore, was the property of the United States, and of a certain value. Second. You must find beyond a reasonable doubt that the defendant Joseph Kirby received, or had in his possession, a portion of that property which had been stolen from the post office at Highmore. Third. That he received or had it in his possession, with intent to convert it to his own use and gain. Now, upon the first proposition,—as to whether the property described in the indictment was stolen, as alleged in the indictment,—the prosecution has introduced in evidence the record of the trial and conviction of what are known as the principal felons; that is, the parties who, it is alleged, committed the larceny. Now, in the absence of any evidence to the contrary, the record is sufficient proof in this case upon which you would be authorized to find that the property alleged in that indictment was stolen as alleged; in other words, it makes a prima facie case on the part of the government, which must stand as sufficient proof of the fact until some evidence is introduced showing the contrary, and, there being no such evidence in this case, you will, no doubt, have no trouble in coming to a conclusion that the property

Page 51

described in the indictment was actually stolenAs alleged, from the post office at Highmore. But I do not want you to understand me to say that that record proves that the stamps that were found in was actually stolen, as alleged, from the that they were the stamps taken from the Highmore post office. Upon the further proposition that the court has suggested, after you have found, by a careful consideration of all the evidence, beyond a reasonable doubt, that the property alleged in the indictment was stolen, then you will proceed to consider whether or not the defendant ever at any time, either on the date alleged in the indictment or any other date within three years previous to the finding of the indictment, had in his possession or received any of this property which was stolen from the post office at Highmore. Now, in order to find the defendant guilty of the offense charged in the indictment, you would have to find beyond a reasonable doubt from all the evidence that he either actually received a portion or all of the property which was stolen from the post office at Highmore, and that he received that property from the thief or thieves who committed the theft at the Highmore post office, or some agent of these thieves. The statute punishes, you will observe, both the receipt of stolen property, knowing it to have been stolen, with the intent described in the statute, and also the having in the possession of such property, knowing it to have been stolen, with the intent to convert it to the person's own use or gain. If you find beyond a reasonable doubt that any of the property which was stolen at the post office at Highmore was actually received or had in the possession of the defendant, then you cannot convict, unless you further find that the defendant had the property in his possession, or received it from the thief or his agent, knowing at the time that it was stolen property. Now, upon the question of whether the defendant knew that it was stolen property, you will, of course, consider all the evidence in the case. You have the right to find that the person or the defendant knew that it was stolen property, from the admissions he may have made, if he made any, if there is such evidence in the case, or from other circumstances that you would have the right to infer

Page 52

that he did know. Now, if a person received property under such circumstances that would satisfy a man of ordinary intelligence that it was stolen property, and you further find beyond a reasonable doubt that he actually did believe it was stolen property, then you have a right to infer and find that, at the time of the receipt of the property, the person knew that it was...