Stone v. United States, 10968.

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: GARRECHT, DENMAN, and STEPHENS, Circuit
• Citation: Stone v. United States, 153 F.2d 331 (9th Cir. 1946)
• Decision Date: 17 April 1946
• Docket Number: No. 10968.,10968.
• Parties: STONE et al. v. UNITED STATES.

153 F.2d 331 (1946)

STONE et al. v. UNITED STATES.

No. 10968.

Circuit Court of Appeals, Ninth Circuit.

February 13, 1946.

As Modified on Denial of Rehearing April 17, 1946.

Morris Lavine, of Los Angeles, Cal., for appellants.

Charles H. Carr, U. S. Atty., James M. Carter, Asst. U. S. Atty., William Strong, Sp. Asst. U. S. Atty., and Homer H. Bell, Asst. U. S. Atty., all of Los Angeles, Cal., for appellee.

Before GARRECHT, DENMAN, and STEPHENS, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal from sentences imposed upon the appellants upon their pleas of nolo contendere to their indictment with 130 other railway employees, of whom appellants, to sustain one of their claims of error, state that by their conviction "practically two entire unions were wiped out."

The indictment charged them with conspiring to violate the Act of February 13, 1913, 37 Stat. 670, as amended January 21, 1933, 47 Stat. 773, 18 U.S.C. § 409, 18 U.S. C.A. § 409. The Act provides, so far as pertinent here, that "* * * whoever shall * * * unlawfully take by any fraudulent device, scheme, or game, from any * * * dining car, or from any passenger * * * while on or in such * * * dining car, when such car is a part of a train moving from one State * * * to another State * * * any money, * * * shall in each case be fined not more than $5,000 or imprisoned not more than ten years, or both * * *."

The conspiracy of the accused as charged in the indictment is "* * * they would steal and would unlawfully take money by fraudulent devices, schemes, and games from the dining cars of the Union Pacific Railroad Company while said dining cars were a part of a train moving in interstate commerce over the Union Pacific Lines from Los Angeles, California, to Omaha, Nebraska, and from Omaha, Nebraska to Los Angeles, California; and would receive and have in their possession such money knowing the same to have been so taken and stolen; * * *"

The unlawfulness of the taking, among others charged, is: "That said defendants in serving meals to military personnel who would have and use government meal orders, on some occasions would serve meals to such military personnel without presenting or using any meal check, and on other occasions would re-use meal checks previously used by and paid by other passengers, and on other occasions would pretend to use a regular meal check, but would not write or cause anything to be written thereon and would discourage said military personnel from writing anything thereon; and thereafter the defendant steward or as sistant steward on that dining car would reuse meal checks previously used and paid by other passengers and would note memoranda thereon, pretending to indicate such checks to have been used in the serving of meals to said military personnel under said meal orders, and said steward or assistant steward would thereupon abstract out of the funds previously collected from other passengers an amount of money equal to and offset by the amount of said governmental orders so used, and the money so abstracted would thereupon be divided among the steward, assistant steward, chef, and waiters employed on such dining car at said time and would be retained by such defendants and converted by them to their own use and benefit; and no part thereof would be turned over or paid to the rightful owner, namely, said Union Pacific Railroad Company."

Among the overt acts is charged: "On September 23, 1944, on a dining car constituting a part of a train moving and traveling in interstate commerce over said Union Pacific Lines between the Cities of Los Angeles, California and Omaha, Nebraska, while said train was moving between Los Angeles and Riverside, California, and all within the Southern District of California, Central Division thereof, defendants Ralph Emerson Chapel, as Steward and William Lawson, as Waiter, served meals to one Benedict P. Cruise and to two Marines and a soldier, whose names are to the Grand Jurors unknown, all of whom were traveling as passengers on said train, and said defendants then and there failed to write or have said passengers write any meal order on any meal checks, and said defendant Lawson at the conclusion of said meals collected the price thereof from said passengers and turned in to the defendant Chapel meal tickets which had been previously completely filled out as to the top and as to the portion provided for the price of the meals, and on which no meal orders were written by either of the said defendants or by any of said passengers, and said defendants failed to detach and deliver to said passengers any receipt portion of any meal checks."

Appellants contend that the indictment charges no crime against the United States because the wrongful taking is not in interstate commerce, but a mere offense, if any, against state law. Appellants' opening brief on appeal ignores the portions of the Act in the amendment concerning the unlawful taking of money from a dining car, which money has been obtained by "fraudulent device," and argues as if it did not exist. It relies upon Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L. Ed. 1160, holding that...