Murphy v. United States

• Citation: 133 F.2d 622
• Decision Date: 16 February 1943
• Docket Number: No. 8993.,8979,No. 8978,8978,8993.
• Parties: MURPHY v. UNITED STATES. CHAPPELL et al. v. SAME. McKEE et al. v. SAME.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

133 F.2d 622 (1943)

MURPHY v. UNITED STATES.

CHAPPELL et al. v. SAME.

McKEE et al. v. SAME.

Nos. 8978, 8979, No. 8993.

Circuit Court of Appeals, Sixth Circuit.

February 16, 1943.

Jack Keefe, of Nashville, Tenn. (Jack Norman and Jack Keefe, both of Nashville, Tenn., on the brief), for appellants.

Brandon Lewis, of Nashville, Tenn. (Horace Frierson, Jr. and Brandon Lewis, both of Nashville, Tenn., on the brief), for appellee.

Before HICKS, ALLEN and HAMILTON, Circuit Judges.

ALLEN, Circuit Judge.

These are appeals from judgments entered on jury verdicts finding appellants guilty of certain violations of §§ 88 and 409 of Title 18, U.S.C., 18 U.S.C.A. §§ 88, 409.

Appellants were charged under various indictments, all of which related to the theft or disposition of certain cigarettes alleged to have been stolen from a railroad warehouse at Columbia, Tennessee, while they were a part of interstate freight shipments. The first count of indictment 959 charged appellants McKee and Chappell with conspiracy to violate § 409 by having possession of certain of such goods knowing that they were stolen and by receiving and concealing them with intent to convert them to their own use, and the second count charged the substantive offense of having such goods unlawfully in their possession, knowing the same to have been stolen. The first count of indictment 962 charged appellant McKee with unlawfully buying and receiving four cases of the cigarettes, knowing the same to have been stolen, and the second count charged McKee with possession of such goods with intent to convert them to his own use, knowing the same to have been stolen. The first count of indictment 960 charged appellants Chappell and Murphy with conspiracy to violate § 409 by having possession of such goods with knowledge that they were stolen and by receiving and concealing the same with intent to convert them to their own use, and the second count charged the unlawful possession of one case of cigarettes so stolen. The first count of indictment 961 charged appellant Murphy with buying and receiving and concealing one case of cigarettes knowing the same to have been stolen, and the second count charged Murphy with possession of the same goods, with intent to convert them to his own use. Indictment 963 charged appellant Chappell with stealing from an interstate shipment.

Indictments 959 and 960 were first called for trial in April, 1940, when separate hearings resulted in a mistrial under each indictment. Indictments 959 and 962 were thereafter consolidated and a trial thereon was had, in which the jury returned a verdict on November 16, 1940, finding Chappell guilty under the second count of indictment 959, and reporting inability to agree upon a verdict on that count as to McKee, or upon any of the other counts involved. Indictments 960, 961 and 963 were likewise consolidated and a trial was had under the combined indictments in which the jury returned a verdict on November 18, 1940, finding Murphy guilty under both counts of indictment 961, Chappell not guilty under indictment 963, and reporting inability to agree upon a verdict as to either count of indictment 960. Indictments 959 and 962 were again tried together in May, 1941, when McKee was acquitted on both counts of indictment 962, both McKee and Chappell were found guilty under the first count of indictment 959, and McKee was convicted on the second count. The subsequent trial of Chappell and Murphy in May, 1941, under indictment 960, resulted in a verdict of guilty against both under each count.

Appeal 8978 involves Murphy's conviction under indictment 961, appeal 8979 involves Murphy's and Chappell's convictions under indictment 960, and appeal 8993 involves McKee's and Chappell's convictions under indictment 959. McKee was ordered to pay a fine and sentenced to two years' imprisonment on each of the two counts of indictments 959 and 960, all sentences to run concurrently. Murphy was sentenced to serve two years upon each count of indictments 960 and 961, the sentences to run concurrently, and was fined upon each count. Chappell was sentenced to two years' imprisonment on each count of indictments 959 and 960, all sentences to run concurrently.

The cases grow out of the following facts: Upon July 26, 1937, two shipments of tobacco were received at the joint freight-house of the Louisville and Nashville Railroad and the Nashville, Chattanooga and St. Louis Railroad at Columbia, Tennessee, consigned to the A. D. Sloan Grocery Company at Columbia, Tennessee, by the American Tobacco Company of Durham, North Carolina. The shipments were checked out of the freight car on July 27, stored in the railroad warehouse, and a few days later were delivered to the consignee, which on or about July 30 found that the shipment was short seven cases of Lucky Strike cigarettes, of a total wholesale value of about $400. One case of Lucky Strike cigarettes was found in the possession of Riley Moore, a grocer of Columbia, Tennessee, who had received it from appellant Murphy, who in turn had received it from appellant Chappell. Upon being questioned Chappell at first declared that he had found the case on a highway near Murphy's house, broken open as if it had fallen from a truck, but later he stated that he had bought it from one Everett Nelson, from whom he received it around midnight on July 27, out on a country road. Chappell promised to return all the stolen cigarettes which he said he had bought for $140, and thereupon went to the home of appellant McKee and from there to a small store owned by McKee, from which he brought out four cases of Lucky Strikes. Shortly thereafter Chappell delivered to the railway police six cases of Lucky Strikes, less one small carton. The four cases were in the original shipping cartons from each of which the name and address of the consignee had been removed. The other two cases, which had been recovered from Murphy, were in other boxes.

Both McKee and Chappell stated that on July 28, Chappell had asked McKee for a loan and McKee had given Chappell a check for $100 to be secured by four cases of cigarettes. Chappell delivered the cigarettes to McKee and helped him place them in a lunch room which McKee operated in Columbia. Chappell was a stonemason who had previously done construction work for McKee and they had been acquainted for many years. McKee admitted that he did not inquire of Chappell as to the source of the cases. The check which he gave Chappell bore on its face the word "Labor," and was cashed by Chappell on July 29.

Murphy at first stated that the case of cigarettes delivered by him to Moore had been picked up on the highway near his home, but later admitted that this was not true, and stated that, pursuant to Murphy's agreement to try to sell the cigarettes, Chappell had delivered them to Murphy's store in Columbia where he sold electrical appliances and also handled some secondhand and other goods. Murphy finally admitted that he had received not one, but three cases and that they were delivered to him at a point about a mile from his store where he had agreed to meet Chappell for the purpose of receiving them. Murphy offered a case of cigarettes in partial settlement of a bill which he owed Moore, who told him he would take them if he could sell them through the Sloan Company, as the cigarettes were not stamped and could not be disposed of by Moore in retail sale. Murphy gave Chappell a check for $50 for this case of cigarettes, but it was never cashed. Murphy denied knowing that any of the cigarettes were stolen and declared that he was at first informed that the cigarettes being searched for were stolen on July 29, and that he concluded that the Lucky Strikes in his possession were no part of the stolen lot, since he had received them from Chappell on July 28. He made no inquiry as to the source of the cigarettes, although he was well acquainted with the fact that Chappell was a stonemason. After learning that a lot of cigarettes had been stolen, he had his nephew take two of the three cases which he had received from Chappell six or seven miles out into the country, and did not reveal his possession of more than one case until after his nephew had made a statement with reference to the matter.

It was the theory of the Government that four of the cases delivered to the officers by Chappell were identical with four of those stolen, that the other boxes, with the exception of the one small carton which was not recovered, contained all of the cigarettes packed in the other three of the original cases, and that both McKee and Murphy, knowing that Chappell was a stonemason, and knowing from their business experience the market price of such cigarettes, received them with knowledge that they were stolen.

The principal legal question is presented by the contention urged on behalf of all appellants in briefs identical upon this point, that the record does not support the verdict of the jury (1) because there was no evidence that the cigarettes were stolen while still part of an interstate shipment, and (2) because those ultimately recovered were not identified as being part of the property stolen.

We think the argument that the court had no jurisdiction because the interstate shipment had ceased when the cigarettes were stolen has no merit. Appellants contend that the cigarettes were stolen from the railroad warehouse after constructive delivery to the Sloan Company, and in the alternative, that it is not shown that the cigarettes were not stolen from the Sloan Company after they were received into its actual possession. They rely upon testimony that the Sloan Company made a practice of paying freight on articles which then would be kept in the warehouse at the depot, to be taken away whenever the company desired, and also upon evidence to the effect that the Sloan Company learned of the shortage in the shipment after it was delivered to its warehouse by its...