Petrilli v. United States, 12168.

• Decision Date: 08 July 1942
• Docket Number: No. 12168.,12168.
• Citation: 129 F.2d 101
• Parties: PETRILLI v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

129 F.2d 101 (1942)

PETRILLI v. UNITED STATES.

No. 12168.

Circuit Court of Appeals, Eighth Circuit.

July 8, 1942.

Bryan Purteet, of St. Louis, Mo., for appellant.

Harry C. Blanton, U. S. Atty., of Sikeston, Mo. (David M. Robinson, Asst. U. S. Atty., of St. Louis, Mo., on the brief), for appellee.

Before GARDNER, WOODROUGH, and JOHNSEN, Circuit Judges.

JOHNSEN, Circuit Judge.

Appellant was convicted of transporting stolen property of the value of $5,000 or more in interstate commerce, in violation of 53 Stat. 1178, 18 U.S.C.A. § 415.

He contends that the evidence is insufficient to support a conviction. A similar contention was urged, and held to be without merit, in the companion case of Russell v. United States, 8 Cir., 119 F.2d 686. In view of the earnest reassertion of the contention here, we shall repeat some of the demonstrative facts.

On the morning of February 7, 1940, a jewelry salesman named I. T. Slifkin was robbed of $12,900 worth of jewelry on a highway near Dallas, Texas. He was forced off the road by another automobile, from which two men emerged with a gun. They made Slifkin lie down in the rear of his own car, covered him up with some coats, and took possession of the brief case in which the jewelry was contained. They then drove his automobile northward toward Arkansas, but some five hours later they abandoned Slifkin and his car on the road, about 30 miles from the Texas-Arkansas border.

Early the next morning, near St. Louis, Missouri, about 20 hours after the robbery and 15 hours after Slifkin's release, two highway patrolmen observed a car, with three occupants, traveling at an excessive speed, and attempted to stop it. The driver crouched down in his seat and increased the speed of the vehicle. One of the other occupants attempted to cover up the rear window. The pursued car attained a speed of over 80 miles an hour. Suddenly it struck a rough spot in the road and skidded; its left front door was thrown open; and the car overturned. When the patrolmen reached the point a few seconds later, there were only two men in the car, both unconscious, one in the front seat and one in the rear. Appellant was found in a filling station driveway, about 75 feet away, cut, bruised and dazed. All three men were sent to the hospital for medical attention, but appellant and one of his companions escaped from the ambulance while it was on its way to the hospital. Appellant was apprehended a short time later.

Slifkin's brief case with the jewelry was found in the car, and he duly made an identification of all of the articles at the office of the highway patrol on the following day. The car also contained three revolvers, some of which were loaded, a liberal supply of extra ammunition, a metal saw, a "jimmy bar", several assortments of other tools, and an extra set of foreign license plates. There was a secret compartment in the side upholstering, operated by a concealed wire, in which part of the ammunition was stored.

At the time of the hold-up, the highwaymen had forced Slifkin to turn his face away, until they had succeeded in covering him up in the rear of the car, so that he was unable under the circumstances to make a personal identification of any of the bandits. Appellant did not take the witness stand, nor did he undertake to offer any other evidence in his own behalf.

The evidence which we have recited clearly was sufficient to warrant a jury in finding that appellant was guilty of the general elements of the offense charged, as against the contentions, made on motion for directed verdict and renewed here, that the proof did not show that appellant ever had possession of the property, or that he knew that it was stolen, or that he had actually engaged in interstate transportation of it. Not alone could the jury find that appellant was an occupant of the car in which the stolen property was recovered, but it was entitled to infer, from the opened door on the driver's side, that he was in fact the operator of the fleeing vehicle. The presence of stolen property in an automobile, which is attempting to evade capture by pursuing officers, in a state that could only have been reached by a transportation of the property across the boundary line of another state, at a time reasonably immediate to the time of the theft, and with no exonerative explanation of any of the incidents involved, certainly is sufficient, as against the operator of the fleeing vehicle and its other occupants, to support a conviction for the interstate transportation of stolen property. See Husten v. United States, 8 Cir., 95 F.2d 168, 170; Drew v. United States, 2 Cir., 27 F.2d 715, 716; Wilson v. United States, 162 U.S. 613, 620, 16 S.Ct. 895, 40 L.Ed. 1090; Niederluecke v. United States, 8 Cir., 47 F.2d 888; Bruce v. United States, 8 Cir., 73 F.2d 972; Russell v. United States, 8 Cir., 119 F.2d 686.

Again, it is argued that the evidence ought to be held insufficient to sustain a conviction because the jewelry itself was not offered in evidence or produced in court. It was no more necessary, as a matter of legal principle, to produce the stolen property in court in order to establish the corpus delicti than it would be to exhibit the corpse in a murder case. The evidence showed that Slifkin had duly identified all the jewelry found in the wrecked car, while it was still in the hands of the state highway patrol. He testified that it constituted the property which had been stolen from him in Texas, except for five or six pieces which were missing, and that the indictment, which was handed him for examination while he was on the witness stand, correctly listed and described the stolen property. In addition, he had previously described generally the character of the articles stolen, and he had further produced a detailed list of the sixty-one several items, which he had prepared and was carrying with him as a personal inventory at the time of the robbery, and which was made available to appellant's counsel for purposes of comparison and cross-examination. No cross-examination as to particularity was engaged in, and there was no evidence to weaken or impeach Slifkin's general identification. In this situation, while the use of the indictment for identification purposes was perhaps not commendable practice, all of the evidence of identification...