United States v. O'BRIEN

• Decision Date: 19 May 1949
• Docket Number: No. 9759.,9759.
• Citation: 174 F.2d 341
• Parties: UNITED STATES v. O'BRIEN et al.
• Court: U.S. Court of Appeals — Seventh Circuit

174 F.2d 341 (1949)

UNITED STATES v. O'BRIEN et al.

No. 9759.

United States Court of Appeals Seventh Circuit.

May 3, 1949.

Rehearing Denied May 19, 1949.

Maurice J. Walsh, of Chicago, Ill., for appellants.

Otto Kerner, Jr., U. S. Atty., and Jack Arnold Welfeld, Asst. U. S. Atty., both of Chicago, Ill., for appellee.

Before MINTON and DUFFY, Circuit Judges, and LINDLEY, District Judge.

MINTON, Circuit Judge.

The defendants were indicted and convicted on a count which charged them with the possession of 27 cases of butter which had been stolen from an interstate shipment, knowing the same to have been stolen. The statute concerned is 18 U.S.C. § 409 now § 659, the pertinent parts of which read as follows:

"(a) Whoever shall — * * *

"(2) embezzle, steal, or unlawfully take, carry away, or conceal, or by fraud or deception obtain from any —

"(i) railroad car, motortruck, wagon, or other vehicle,

"(ii) station house, platform, depot, or terminal,

"(iii) steamboat, vessel, or wharf,

"(iv) aircraft, airport, aircraft terminal or air navigation facility,

"any goods or property moving as or which are a part of or which constitute an interstate or foreign shipment of freight or express, with intent to convert such goods or property to his own use, or shall buy, receive, or have in his possession any such goods or property, knowing the same to have been embezzled or stolen; * * *."

In the court below a motion to suppress the evidence was heard and overruled, and separate motions for acquittal were filed at the conclusion of all the evidence and overruled. These are assigned and discussed as error duly presented below. The defendants present here for the first time their contention that the count upon which they were convicted was defective.

We shall first discuss the sufficiency of the evidence to support the verdict and judgment, which is presented by the motions for acquittal. In answering that question, we consider only the evidence favorable to the verdict and such reasonable inferences as the jury may have drawn therefrom. Butler v. United States, 7 Cir., 138 F.2d 977; United States v. Monarch Distributing Co., 7 Cir., 116 F.2d 11.

The following facts are supported by substantial evidence in the record. On November 17, 1947, in the city of Chicago, Illinois, Police Officer Harrington was on his beat at 3 A.M. in the vicinity of the intersection of Emerald Street and Root Street. Emerald Street runs north and south, and Root Street runs east and west between 41st and 42d streets. On the northeast corner of Emerald and Root was a lot on which Safeway Truck Lines parked its truck trailers. An office of Safeway adjoined the parking lot. At the time in question, four truck trailers of Safeway were on this lot. The lot was well lighted. As Officer Harrington was going to a call box on the corner of Root and Halsted streets, a block west of Emerald Street, to make his routine call to headquarters, he heard a truck on Safeway's lot. The throttle of the truck was full and the engine made an unusual noise and attracted his attention. He looked in the direction of the lot and saw a red truck without lights leaving the lot in the vicinity of the trailers. The back of the truck had folding gates.

The officer went on and pulled his box at Root and Halsted streets. He then walked east on the north side of Root Street and as he came to the alley between Halsted and Emerald streets, he saw a truck, similar to the one he had seen leaving the Safeway lot, driving south on Emerald at about forty miles an hour. He returned to the Safeway lot and examined the trailers. One was not molested. The other three were broken open, and the locks and seals were lying close to the opened trailers. One seal put in evidence bore a number and was identified as put on the Safeway truck trailer that had left Mason City, Iowa, for Boston, Massachusetts, loaded with butter. It was a railroad seal used by the creamery that shipped the butter to seal the trailer and bore the markings "M. C. and C. L. R. R. Co.," which were the abbreviations for "Mason City and Clear Lake Railroad Company." It was the usual seal used by the creamery company. Officer Harrington observed cartons labeled Hillcrest butter and Tootsie Roll candy in the trailers.

The officer then went south on Emerald Street and took a look at a truck parked on the east side of the street about three hundred feet south of Root. The defendants came north on Emerald, walking on the west side of the street, from the direction of 42d Street. The officer came out from behind a truck parked on the east side of the street, crossed the street, and flashed his light on the defendants, who were attired in workmen's clothes. O'Brien made some "disparaging remark" to the officer, but when the defendants recognized the policeman, they apologized. The officer, addressing defendant Keating, asked where he had been and where he was going. His answer was that he was going to the Blackout Tavern and had come from Henny Burns' barn, which was located at 4210 Emerald Street, where he was employed as a watchman. The defendants gave their right names. The officer asked Keating if he wasn't driving a truck that morning, referring to the one he had seen going south on Emerald Street about forty miles per hour when he was walking east on Root Street after he had pulled his box. Keating said he had been driving a truck but that it belonged to one Frankie McDermott, and that he, Keating, would take the officer and show him the truck.

They proceeded south on Emerald Street and were crossing 42d Street when Keating said, "In here is the truck I was driving." The officer saw parked in front of 4210 Emerald Street, on the west side of the street, the red truck he had seen twice before that morning, and he said that was the truck he wanted to see. The officer and the defendants walked over to this red truck which had folding gates in the rear. The officer flashed his light in the back of the truck and saw cartons labeled Hillcrest butter and Tootsie Roll candy, similar to the merchandise he had seen in the trailers of Safeway that had been broken open. As they were walking towards this red truck, Keating had said he was better known by the name of Curley. On each side door of the truck was painted "Curley's Motor Service." It was a cold night, but the radiator of the truck was warm. Keating denied it was his truck, but it was definitely shown later to be Keating's truck. O'Brien said the truck must belong to some "so-and-so" in the hotel across the street, whereupon Harrington said to the defendants, "If you know so much about it, let's go over there and ascertain who owns the truck." O'Brien was intoxicated but Keating, although he had been drinking, was not intoxicated.

They went to the hotel, the officer called the police station, and the wagon and officers came and took the defendants to the station where they were locked up. Harrington did not go to the station but returned to safeguard the trailers. He called Morrison, chief dispatcher of Safeway, and reported that the trailers had been broken into. Morrison came to the parking lot and examined the trailers, one of which was loaded with butter shipped from Mason City, Iowa, to Worcester, Massachusetts. Twenty-seven cases of butter had been taken from this trailer and 27 cases of similar brand and package of butter were found in Keating's truck.

Officer McInerney, one of the officers who came in response to Harrington's call to the station, testified that he recognized Keating, and that Keating told him the truck (Curley's truck) was his. McInerney testified he did not accompany the defendants to the station but stayed to guard the truck, that he examined it and saw butter therein. About two hours later, McInerney returned to the station where the defendants were being held. He asked Keating to give him the keys to the truck. Keating replied that he might get in trouble if he admitted he had the keys. McInerney said, "If you give me the keys I will say I found them." Keating gave him the keys. They fit the locks on Keating's truck, and it was driven to the police station and 27 cases of butter were taken out. In his police report McInerney did say he found the keys on the street in front of the hotel.

Special Agent Frankfurt of the Federal Bureau of Investigation testified that the matter was reported to the F.B.I. at 5 or 6 A.M. November 17. Frankfurt interviewed the defendants at the station about ten o'clock that morning. About three o'clock that afternoon he consulted the United States District Attorney on the case. It was then too late in the afternoon to arraign the defendants before the United States Commissioner, who had left his office for the day. The defendants were arraigned before the Commissioner the next day, November 18, at 11 A.M. or 2 P.M., Frankfurt testifying that he...