Miller v. United States
| Decision Date | 05 February 1924 |
| Docket Number | 6214. |
| Parties | MILLER et al. v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Horace L. Dyer, of St. Louis, Mo. (Chester H. Krum, of St. Louis Mo., on the brief), for plaintiffs in error.
Allen Curry, U.S. Atty., and Claude M. Crooks, Asst. U.S. Atty both of St. Louis, Mo.
Before KENYON, Circuit Judge, and TRIEBER and MUNGER, District Judges.
The plaintiffs were convicted on each count of an indictment charging in four separate counts the offenses of unlawfully breaking the seal of a railroad car containing an interstate shipment of freight, of entering the car with intent to commit larceny therein, of stealing from the car goods moving as a part of an interstate shipment of freight, and of having in possession such goods, knowing them to have been stolen. Comp. St. Sec. 8603. Plaintiff in error Miller was sentenced to eight years' imprisonment under each count, but his sentences were made to run concurrently. Each of the other plaintiffs in error was sentenced to seven years' imprisonment under each count; the sentences also running concurrently.
No assignments of error are set out in the brief of plaintiffs in error, as is required by rule 24 of the Rules of the Circuit Court of Appeals for this circuit, and the rule also provides that 'errors not specified according to this rule will be disregarded,' unless the court exercises its option to consider a plaint error. The overruling of a demurrer to the indictment was challenged in the brief of plaintiffs in error upon the ground that there was not enough detail in the description of the goods alleged to have been contained in the car and stolen by the plaintiffs in error, but at the argument it was conceded that the description was sufficient under the rules announced in Fleck v. United States (C.C.A.) 265 F. 617, 618; Zimmerman v. United States (C.C.A.) 290 F. 376, 378.
Requests of each of the plaintiffs in error for an instruction to the jury to return a verdict of acquittal were overruled and this refusal is assigned as error. In support of this, it is stated that there was no evidence that either of plaintiffs in error broke a seal, entered the car for any purpose, stole from the car any goods which were being carried in interstate commerce, had possession of any goods stolen from a car in interstate commerce, or had knowledge that such goods had been stolen in interstate commerce. As the same sentence was imposed under each count, and the sentence was such as might have been imposed under that count, this assignment of error cannot be sustained if the evidence was sufficient under any one of the counts. Abrams v. United States, 250 U.S. 616, 619, 40 Sup.Ct. 17, 63 L.Ed. 1173; Matters v. United States (C.C.A.) 261 F. 826, 827; Coleman v. United States (C.C.A.) 268 F. 468, 472; De Kay v. United States (C.C.A.) 280 F. 465, 467.
There was ample evidence that a railroad car stood on the track at Moselle, Mo., and that shortly before midnight on May 1, 1920, an automobile was driven close to this car and stopped and its lights were turned off. A witness who lived near testified that he heard voices of men at the car, the sound of boxes being broken open, and saw the flashing of lights there. He procured a constable and other helpers, and they placed an obstruction nearby and across the only road by which the automobile could leave, and left men there as guards. The automobile soon endeavored to drive along the road, and, when it ran against the obstruction, four men in it jumped out and ran. Three of them ran across the road and escaped through the premises of an adjoining landowner. The other ran down the road in front of the automobile, but was halted and arrested by the guards. Although he had just hastily left the automobile, this man, when questioned, denied that he had ever seen it before, and declared he knew nothing about it. The automobile was found well loaded with new coats and shirts, with shoes, hosiery, and other articles,-- some in cartons, and some not in packages.
The evidence was sufficient to prove that some of the goods described in the first four counts of the indictment had been delivered to a railroad company at Lawton, Okl., for shipment to the consignees named at Chicago and St. Louis, and these shipments of freight were traced by the railway employes, as witnesses, as part of the goods...
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