United States v. Brand, 133.

• Citation: 79 F.2d 605
• Decision Date: 12 November 1935
• Docket Number: No. 133.,133.
• Parties: UNITED STATES v. BRAND et al.
• Court: U.S. Court of Appeals — Second Circuit

79 F.2d 605 (1935)

UNITED STATES v. BRAND et al.^*

No. 133.

Circuit Court of Appeals, Second Circuit.

November 12, 1935.

Meyer Kraushaar, of New York City, for appellant.

F. W. H. Adams, U. S. Atty., of New York City (Seymour Miller Klein, Asst. U. S. Atty., and Richard J. Burke, Sp. Asst. U. S. Atty., both of New York City, of counsel), for the United States.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

Brand, the appellant, was indicted with Oaklander, Shapiro, Doubleday and Schwartz for transporting in interstate commerce a stolen motorcar, with an appending count for conspiracy. Doubleday and Schwartz pleaded guilty and turned state's evidence; the other three stood trial and were convicted; Brand alone has appealed. The prosecution proved that Brand had sold a car to Doubleday in New York through the mediation of Schwartz, and that the car had been stolen; the only issues in substantial dispute were whether Brand knew that the car had been stolen, and whether he was party to its transportation to Connecticut, where Doubleday lived. On the first issue Schwartz testified that Brand had told him that the car was "hot," i. e., stolen, and Doubleday, that Brand had assured him that two purchasers of other cars had had no "trouble" with them. He lent Doubleday the plates from a car of his own and got new plates for him through Oaklander and Shapiro. To do so he used a bill of sale purporting to be from Seaman and Cohen, but signed in the name of Brand's brother-in-law, Langer, a discrepancy which he did not satisfactorily explain. Moreover, he told Doubleday to say that the car came from Seaman and to "let them find out" who Seaman was. The registration was for another year than the slips which were given Doubleday to keep. Finally, it was proved that six months before Brand had sold another stolen car. The whole of this evidence certainly made an issue of the scienter.

On the second issue, as we have just said, Brand agreed to procure new plates for Doubleday through Oaklander and Shapiro, and until then he was to let him use plates taken from his own car. He also detailed Schwartz to drive the car into Connecticut and told Doubleday to deduct ten dollars from the price and give it to him for this service. Finally he arranged that an assistant should drive Schwartz's car out of the city, Doubleday being unused to city driving, after which Doubleday was to follow Schwartz and the stolen car. As to this second issue, it was held in Overby v. U. S., 23 F.(2d) 908 (C. C. A. 7), that the seller becomes a principal in the transportation, if he sells a stolen car with knowledge that the buyer will take it to another state. Cf. Cook v. Stockwell, 25 Cox's C. C. 49. We need not here decide whether this is the right doctrine, because Brand, as we have shown, actively intervened to assist the very movement of the car to Connecticut. It is true that the judge charged the jury in accordance with Overby v. U. S., supra, but no objection was made, and the only question before us is of the sufficiency of the evidence.

The other supposed errors relate to the incidents which arose during the trial. The first is the admission on the scienter of the sale by Brand of the other stolen car to one Ross. The argument is based on the doctrine of Regina v. Oddy, 2 Denison C. C. 272, Copperman v. People, 56 N. Y. 591, and Edwards v. U. S., 18 F. (2d) 402 (C. C. A. 8), that evidence of the receipt of other stolen goods is not admissible unless the prosecution proves that the accused knew them to have been stolen. At least in this circuit there is no such doctrine. Sapir v. U. S. (C. C. A.) 174 F. 219. We later did indeed give an obiter assent to Regina v. Oddy, supra, in Wolf v. U. S. (C. C. A.) 290 F. 738, but the evidence then before us was clearly inadmissible anyway; and the authority of the case is to be understood as limited to the facts. Means v. U. S. (C. C. A.) 6 F.(2d) 975, 979. Nakutin v. U. S., 8 F. (2d) 491 (C. C. A. 7), states the proper doctrine, for the competence of such evidence does not depend upon conformity with any fixed conditions, such as upon direct proof of scienter, or the identity of the thief in the earlier instance, or of the victim, or the number of instances in which the accused received stolen goods, or the similarity of the goods stolen. These are all relevant circumstances but not necessary constituents. Nor can we see any basis for...