Marifian v. United States, 10423-10425.

• Decision Date: 14 April 1936
• Docket Number: No. 10423-10425.,10423-10425.
• Citation: 82 F.2d 628
• Parties: MARIFIAN v. UNITED STATES. KOLAR v. SAME. FINK v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

82 F.2d 628 (1936)

MARIFIAN v. UNITED STATES.^*

KOLAR v. SAME.

FINK v. SAME.

Nos. 10423-10425.

Circuit Court of Appeals, Eighth Circuit.

March 25, 1936.

Rehearing Denied April 14, 1936.

Charles A. Lich, of St. Louis, Mo. (Joseph J. Lemen and E. C. Koeneman, both of St. Louis, Mo., on the brief), for appellants.

Henry G. Morris, Asst. U. S. Atty., of St. Louis, Mo. (Harry C. Blanton, U. S. Atty., of Sikeston, Mo., on the brief), for the United States.

Before STONE, VAN VALKENBURGH, and FARIS, Circuit Judges.

STONE, Circuit Judge.

These three appellants, with Sam Birenbaum and George Stone, were indicted in three counts, the first of which charged possession of 27 boxes of New Currency cigars stolen from an interstate shipment; the second count was for similar possession of 60 cans of Muriel cigars; and the third count for a conspiracy to receive, possess, and offer for sale and to transport the above cigars. Birenbaum and Stone pleaded nolo contendere and were witnesses for the government. Each of the three appellants was found guilty. From such judgments they bring separate appeals.

Three matters are presented in the joint brief of appellants. The first of these is that the evidence was insufficient to identify the cigars found in possession and others admitted to have been possessed as being stolen from an interstate shipment. The second is that the evidence was insufficient to show guilty knowledge. The third is that the cigars at the time they were stolen had ceased to be part of an interstate shipment and therefore the court erred in not directing a verdict or, what was in substance the same contention, to instruct the jury that if the goods at the time they were stolen were being transported by an agent of the consignee the verdict should be for defendants. In the oral argument no mention was made of the second above issue relating to guilty knowledge, and we assume therefrom its abandonment United States v. Chicago, Burlington & Quincy R. Co., 82 F.(2d) 131 (C.C.A.8), decided February 10, 1936; Schnitzer v. United States, 77 F.(2d) 233, 235 (C.C.A.8), and direct our attention only to issues 1 and 3, above.

I. Identity of Cigars.

In order that this point and the evidence relating to it may be understood, it is necessary to state the general situation as shown by the testimony. The Hauptmann Tobacco Company of St. Louis, Mo., was the exclusive agent or representative of P. Lorillard & Company of Richmond, Va., for the sale of Muriel and of New Currency cigars in a territory which included St. Louis, Mo., and East St. Louis, Ill. One shipment from Lorillard to the Hauptmann Tobacco Company billed (freight prepaid) from Richmond, Va., to the company at its address in St. Louis, Mo., reached East St. Louis, Illinois, on its journey. Instead of being carried further by rail carrier, it was there met by truck to be carried to the Hauptmann Tobacco Company's place of business (to which it was billed) in St. Louis, Mo. The shipment consisted of 231 cartons, some of which contained Muriel cigars packed in tin cans while others contained New Currency cigars packed in cigar boxes. The truck took 226 cartons, leaving 5 which were subsequently called for and received by the Hauptmann Company. After proceeding a short distance, and while yet in East St. Louis, the truck was taken possession of by an armed man who ultimately ejected the driver. This theft occurred April 11, 1934. Investigators, at once, took up the trail and recovered about 143 cartons from parties who are not here involved. In the course of this investigation, and on May 28, 1934, appellant Kolar was arrested while driving his automobile in East St. Louis, Ill. In the automobile was found a carton with 27 boxes of New Currency cigars. Defendants testified to the purchase of sixty cans of Muriel cigars at the same time 80 boxes of New Currency cigars (of which the twenty-seven boxes were part) were bought.

This issue of identity has to do with the identity of these 27 boxes of cigars and of the 60 cans of Muriel cigars as parts of the stolen shipment. The evidence reveals the following upon that issue: This was the same kind of carton in which the cigars had been shipped. These were the same brands of cigars in the shipment. The carton had contained a label which had, obviously, been intentionally mutilated in an attempt to destroy it. Some particles of the label had not been destroyed. These fragments showed that this label was the same size label as that used upon this and other shipments. A few letters on the label had escaped mutilation. These letters corresponded in identity, character, and location on this label to like letters on similar labels used in this and other shipments....