Stern v. United States

• Decision Date: 25 May 1953
• Docket Number: 11598.,No. 11597,11597
• Parties: STERN v. UNITED STATES. GIORDANO v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

204 F.2d 647 (1953)

STERN v. UNITED STATES.

GIORDANO v. UNITED STATES.

Nos. 11597, 11598.

United States Court of Appeals Sixth Circuit.

May 25, 1953.

George S. Fitzgerald, Detroit, Mich., Philip A. Gillis, Detroit, Mich., on brief, for Max Ben Stern.

Russell G. Mock, Youngstown, Ohio, for Joseph Giordano.

Vincent Fordell, Detroit, Mich., Joseph C. Murphy, Detroit, Mich., on brief, for appellee.

Before MARTIN, McALLISTER and MILLER, Circuit Judges.

PER CURIAM.

On February 17, 1953, an order was entered in this court affirming the judgments of conviction and sentence in these two criminal appeals. On February 18, appellants, through their attorneys, filed a motion for correction of the record on appeal, wherein omissions and inaccuracies in the record filed theretofore were set forth. On February 19, 1953, this court, in the interest of substantial justice, entered an order setting aside the order of affirmance theretofore entered and remanded the causes to the United States District Court for procedure in conformity with the Rules of Civil Procedure to settle the record, so as to make it conform to the truth with respect to the proceedings in the district court brought here for review.

The case was ordered set for rehearing at the present session and has been heard on the supplemental, corrected record and on the briefs and oral arguments of the United States Attorney and attorneys for the appellants.

The court adheres to its original decision that there was substantial evidence, largely circumstantial but sufficient in character if the jury so considered it, to exclude every hypothesis except that of the guilt of the accused parties, unless there was error in the interpretation by the trial court, and in its charge, concerning the replacement value of the stolen furs transported in interstate commerce from Youngstown, Ohio, to Detroit, Michigan.

The statute upon which the indictment was placed provides: "Whoever shall transport or cause to be transported in interstate or foreign commerce any goods, wares, or merchandise, securities, or money, of the value of $5,000 or more theretofore stolen * * * or taken feloniously by fraud or with intent to steal or purloin, knowing the same to have been so stolen * * * or taken, * * * shall be punished by a fine of not more than $10,000 or by imprisonment for not more than ten years, or both". Section 415 now section 2314, Title 18 U.S.C.A., National Stolen Property Act. It will be observed that the goods transported in interstate commerce must possess a value of $5,000, or more, as an essential or jurisdictional ingredient of the offense defined. It is, of course, settled that the market value at the time and place of the taking is the true standard of value within the meaning of the statute, if the stolen goods have a market value at such time and place. See Kowalchuk v. United States, 6 Cir., 176 F.2d 873, 876; and Gordon v. United States, 6 Cir., 164 F.2d 855. The original record, heretofore considered by us on the former hearing, did not contain the Court's charge to the jury. The supplemental record shows that the jury was charged: "* * * If you should find from all of the evidence in this case that there was no market for these furs, as used furs, at that time and place, then you have a right to consider their replacement value at the time and place mentioned here, which would be, as you know, around Youngstown or neighboring places. In other words, you will consider what the cost would be to replace these furs between January 1, 1948 and February 20th, 1948." The further charge of the court limited the issue of value to either the market value or the replacement value.

The supplemental record also shows what the original record did not show — that there was specific exception by one of the attorneys for defendants to the portion of the charge which referred to "replacement value." Moreover, the firm insistence of appellants throughout the trial was that there was a specific market value for the furs in the Youngstown area, and that such market value was less than $5,000; but that, if the jury should reject testimony to such effect, the court had no right to charge it to substitute "replacement value" for "market value" as the criterion or standard of value intended by the federal statute. We consider Husten v. United States, 8 Cir., 95 F.2d 168, relied on by the government as authority, not to be pertinent to the present issue.

We think the position of appellants is well taken and that the court should not have limited the jurors to consideration of "replacement value" should they find that there was no "market value" for the furs in the Youngstown area. Such a standard gives no effect to depreciation from use, and particularly, in the case of such property as is involved in this case, to deterioration which the evidence showed often resulted from the mere passing of time. See Myers v. State, 137 Md. 491, 113 A. 90. If there was no "market value" for the used furs in the Youngstown area, then their actual value should be shown in other ways. Durocher v. Myers, 84 Mont. 225, 274 P. 1062; Klam v. Koppel, 63 Idaho 171, 118 P.2d 729; State v. Walker, 119 Mo. 467, 24 S.W. 1011. Actual value is not necessarily the same as original cost, as economic conditions affecting value may have materially changed since the article was purchased. Gray v. Commonwealth, 288 Ky. 25, 27, 155 S.W.2d 444; State v. McComas, 89 Mont. 187, 295 P. 1011, 1013. In determining the value of the furs in the present case at the time when they were stolen, the Court should have instructed the jury that if there was no "market value" for the furs, as used furs, at that time and place, then it should consider their replacement value at that time and place, less the depreciation or deterioration in value, if any, that occurred to the furs during the period of time the furs were owned by their owner prior to being stolen from her. Pratt v. State, 35 Ohio State 514, 518. See Davis, Agent, v. Rhodes, 206 Ky. 340, 266 S.W. 1091; Union Light Heat & Power Co. v. Heving, 250 Ky. 223, 226, 62 S.W.2d 789. In making this determination, the jury could properly consider the original cost, the period of time which had elapsed since the purchase, the amount of use to which they had been subjected, their physical condition at the time they were stolen, and any other circumstances affecting their actual value. Filson v. Territory, 11 Okl. 361, 67 P. 473; Lambert v. State, 91 Neb. 520, 136 N.W. 720; State v. McComas, supra; Myers v. State, supra. Such an instruction recogognizes the element of replacement value, which was used by the Trial Judge, but does not make such value the sole criterion.

Although Government expert witnesses testified that there was no depreciation or deterioration, that the furs were as good as new, and that the replacement value was their actual value, the jury did not have to accept such testimony, even if uncontradicted, and could find from a physical examination of the furs and from the fact of ownership and use from July, 1946, for one of the furs and from September, 1947, for the other, until February, 1948, when they were stolen, that depreciation or deterioration actually had taken place. Quock Ting v. United States, 140 U.S. 417, 420-421, 11 S.Ct. 733, 35 L.Ed. 501; Norton v. United States, 8 Cir., 205 F. 593, 601, certiorari denied, 235 U.S. 699, 35 S. Ct. 200, 59 L.Ed. 432; State v. Murphrey, 186 N.C. 113, 118 S.E. 894; United States v. Candler, D.C.N.C., 65 F. 308, 312; People v. Taylor, 4 Cal.2d 495, 50 P.2d 796; State v. Stapp, 246 Mo. 338, 151 S.W. 971; George v. State, 240 Ala. 632, 200 So. 602. The charge, as given, foreclosed this right.

The judgment is reversed in each case, and the cases are remanded to the District Court for a new trial.

McALLISTER, Circuit Judge (dissenting).

There appears to me no reversible error in the court's charge on the question of value wherein it instructed the jury that the market value at the time and place of taking was the true standard of value within the meaning of the statute, and that if there was no market value for the furs at the time and place in question, the jury could consider the cost of replacement of the furs at the time and place as the value of the furs for the purpose of the case.

Among the witnesses for the government, Stephen J. Peterlin, an expert furrier, testified that, considering the use which the two garments had and the fact that they showed no visible soil, the value of each garment at the date of transportation was, in his opinion, the same as the purchase price of $3,997.50. Harold J. Cikra, another government witness, testified that, taking into consideration the fact that one of the garments was purchased in September, 1947, and the other, in July, 1946; that both had been subjected to some wear; that there had been a slight oxidation of the fur, but that the color was still very desirable, his judgment was that each of the garments was of the value of $3,500.00, one of the reasons being that he considered, as an expert, that the furs in question were "as good as new." He further stated that his judgment was that their value was equivalent to what their replacement value would be. Ray J. Sullivan, another expert, also testified that in his opinion, taking into consideration that the garments had been subjected to some use, he valued one of them, as of the date of transportation, at $3,500.00, without tax, "even considering that it was purchased in September, 1947," and the other garment, which he testified was "in perfect condition," at $3,000.00, without tax. He further testified that it was his opinion that it would cost that much to replace the garments and, in answer to a question on cross-examination that "That replacement cost, to you, * * * is the reason why you say three thousand and thirty-five hundred, without the tax?" he replied: "Yes, sir." He further testified that the...