Rosenblatt v. United States

• Decision Date: 12 January 1921
• Docket Number: 102.
• Citation: 271 F. 435
• Parties: ROSENBLATT et al. v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Second Circuit

271 F. 435

ROSENBLATT et al. v. UNITED STATES. ^[1]

No. 102.

United States Court of Appeals, Second Circuit.

January 12, 1921

Samuel Hershenstein, of New York City (Edward T. McLaughlin, of New York City, of counsel), for plaintiffs in error.

Francis G. Caffey, U.S. Atty., of New York City (John E. Joyce, Asst U.S. Atty., of New York City, of counsel), for the United States.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

MANTON Circuit Judge.

On May 28, 1919, the Brennan Packing Company shipped from Chicago Ill., to New York, 800 tierces of choice steam lard by way of the Erie Railroad Company. It was consigned to the order of the Brennan Packing Company, Cunard Line, account of Co-operative Wholesale Society. On June 4, 1919, 100 tierces arrived at Jersey City and were delivered aboard the steamship Mauretania and were transported to Liverpool. The remaining 700 tierces were placed on an Erie barge, No. 341 and remained on this vessel at Jersey City until the night of June 17, 1919. On that night 334 tierces were stolen from barge No. 341, and on June 18, 1919, the balance of the shipment of 700 tierces, with the exception of 3, was delivered aboard the steamship Borenquin, and was subsequently carried to Liverpool. The 334 tierces stolen are the subject of the larceny here in question.

The plaintiffs in error, together with Morris Rosenblatt, were the proprietors of a restaurant at 624 Sixth avenue, New York City. Their codefendants, Feuer, Chapman, and Verkayk, were shown to be visitors at this restaurant subsequent to June 17, 1919. On June 16, 1919, Feuer, an acquaintance of Joseph Rosenblatt for about two years, called at the restaurant. One Gold, the manager of the restaurant, was asked if he could find a buyer for the tierces of lard. Later that day, Joseph Rosenblatt promised Gold to obtain samples of the lard to exhibit to prospective buyers, and he did produce such samples. Joseph Rosenblatt, by telephone, offered tierces of lard to persons for sale and the testimony showed that he reported these conversations to the plaintiff in error Davidson. Gold produced one purchaser who bought 100 tierces. This sale was made through the plaintiffs in error on June 20, 1919, and the lard was sold at 29 cents a pound. A check in payment was drawn to the order of Gold, as a deposit, and Gold gave the check to the plaintiff in error Davidson. On June 23 Davidson returned the check to the purchaser, and then a check for $1,000 was drawn by the purchaser to Gold's order, and the reason given therefor was that the purchaser knew Gold, but did not know the plaintiffs in error.

At the request of the plaintiffs in error, this lard was delivered to the Merchants' Refrigerating Company on June 23 by a truckman whose name was given as McDonald. Two of the tierces were delivered at the purchaser's store. The plaintiff in error Davidson accompanied the truckman to the Merchants' Refrigerating Company, and there met the purchaser of the lard, and made a demand for payment of the trucking bill. They went to the purchaser's place of business, and five $1,000 Liberty bonds were given in payment. One of these $1,000 bonds was given to the plaintiff in error Davidson, on account of the purchase price, and he gave the purchaser a receipt. After the lard was weighed and placed in the warehouse, the weights were figured out and returned to the plaintiff in error Davidson by the purchaser, at the restaurant. There the plaintiffs in error and the purchaser figured out the cost, and part payment was made in Liberty bonds, the balance by check on June 25th. The codefendants Feuer and Chapman later met the plaintiffs in error at the restaurant and made a division of the Liberty bonds. Contemporaneously with the sale of the stolen lard, as above narrated, the codefendants Feuer and Chapman made a sale to David C. Link Company of 350 tierces of lard. The same truckman, who used a fictitious name, delivered 78 tierces to the Terminal Warehouses on June 25, 1920, and delivered in all 166 tierces. The balance sold by Feuer and Chapman were never delivered. The Liberty bonds given by the plaintiff in error Davidson to the truckman on June 23 to pay the trucking charges for this sale to the Link Company, is a charge for hauling 78 tierces.

The indictment contained four counts, naming as defendants, in addition to the plaintiffs in error, four others, Isidore Feuer, James Chapman, Albert G. Verkayk, and Morris Rosenblatt. The first count of the indictment charged conspiracy on the part of the six defendants to commit an offense against the United States and in violating the act of Congress approved January 13, 1913 (37 Stat. 670). It alleged a conspiracy to steal and unlawfully carry away and take a large number of tierces of choice steam lard moving in interstate commerce, and to receive and possess such lard after it had been stolen. The second count charged the same defendants with larceny of the lard on June 17, 1919. The third count accused them of knowingly receiving the stolen lard. The fourth count, that they had possession of the lard with knowledge of the theft.

The verdict of the jury established the guilt of Feuer, Chapman, and Verkayk on the second and third and fourth counts, and of the plaintiffs in error on the third and fourth counts. There was no report as to the guilt or innocence as to any defendants on the first count, nor was a verdict returned as to the plaintiffs in error on the second count. The defendant Morris Rosenblatt was acquitted.

The evidence in the case, some of which is narrated above, required the submission of the question of guilt or innocence of the plaintiffs in error to the jury. After the rendition of the verdict, the District judge denied the motions of the plaintiffs in error to set aside the verdict. The verdict of guilt as to the plaintiffs in error is fully justified by the evidence, and the judgment below must be affirmed, unless there be error committed in the course of the trial.

There are 15 errors assigned, most of which are not now urged. It is contended that counts 3 and 4 of the indictment are...