United States v. Cohen
| Decision Date | 15 July 1921 |
| Docket Number | 2701. |
| Citation | 274 F. 596 |
| Parties | UNITED STATES v. COHEN. |
| Court | U.S. Court of Appeals — Third Circuit |
George E. Cutley, of Jersey City, N.J., for plaintiff in error.
Isaac Gross, of Jersey City, N.J., for the United States.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
Joseph Cohen, the defendant below, was indicted, tried, and convicted for having in his possession with intent to convert to his own use a case of goods belonging to the United Cigar Stores Company, knowing the same to have been stolen in violation of the Act of February 13, 1913, 37 Stat. 670 (Comp. St. Secs. 8603, 8604). The Cigar Company delivered the case to a driver of the American Railway Express Company at its office in the Bush Terminal Building, Brooklyn, New York to be sent by express to its office in Columbus, Ohio. The case was addressed to the United Cigar Stores Company Columbus, Ohio. The next information of the case, based upon competent testimony, is that, some days after delivery to the driver of the Express Company, it appeared on the express company's platform in Jersey City, N.J., the address of the consignee erased, and then addressed to 'J. Cohen 347 Second Street, Jersey City. ' The suspicion of Edward M. Robertson, an employee of the express company, was aroused. He took the case and put it into the office of the express company until the next day, when it was, under the direction of the detectives of the company, delivered by Calvin Jenkins, a driver for the company, to Cohen, who made unsatisfactory explanations of his reception of the case, the source from which he expected it, and he was accordingly arrested by Mr. Herdling, a detective of the company, and Mr. Torpey, a detective of Jersey City.
At the conclusion of the trial, counsel for defendant moved for the direction of a verdict on the ground:
'That under the Moynihan Case there is no proof that the goods were ever stolen with intention to convert to his own use, and that under the Copertino Case the physical repossession is a recovery in law, which divests these goods of the characteristic of stolen goods.'
This motion was denied, and an exception granted to the defendant, who sued out a writ of error to this court.
The first question to be considered is whether or not the facts disclosed by the evidence show that the case of goods was stolen. At common law larceny was the felonious taking without his consent and carrying away the goods of another, with intent to convert to his (the taker's) own use and permanently deprive the owner of them. The statute under which this indictment was found provides:
That 'whoever shall steal or unlawfully take, carry away, * * * from any railroad car, station house, platform, depot, steamboat, vessel, or wharf, with intent to convert to his own use any goods or chattels moving as, or which are a part of or which constitute, an interstate or foreign shipment of freight or express, * * * or shall have in his possession any such goods or chattels, knowing the same to have been stolen,' upon conviction shall incur the penalties prescribed in the act.
The word 'steal' is defined by the words 'unlawfully take, carry away, * * * with intent to convert to his own use. ' To constitute 'stealing' there must be an unlawful taking and carrying away with intent to convert to the use of the taker and permanently deprive the owner. To take a thing, within the meaning of criminal statutes, it is necessary that the taker at some particular moment should have adverse, independent, absolute possession of it. People v. Call, 1 Denio (N.Y.) 120, 43 Am.Dec. 655; State v. Chambers, 22 W.Va. 779, 46 Am.Rep. 550; 2 Wharton's Criminal Law (11th Ed.) 1365.
Admittedly the taking in the case before us, if there was a taking was the change of the address on the case. So far as the evidence discloses, the case of goods was never out of the actual physical possession of the express company until it was delivered to the defendant. Just how, when, and where the change in the address was made is not known. The most that can be said is that the possession by the thief was constructive, and the express company was the innocent agent of the thief in diverting the goods from their...
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State v. Hageman, 206A82
...it loses its status as stolen property. In considering a situation similar to the one before us, the court in United States v. Cohen, 274 F. 596 (3rd Cir. 1921), stated: When the actual, physical possession of stolen property has been recovered by the owner or his agent, its character as st......
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German v. United States, 85-1621.
...when a defendant's actions, or actions a defendant causes, even if fully carried out would not constitute a crime. United States v. Cohen, 274 F. 596 (3d Cir.1921); State v. Hageman, 307 N.C. 1, 296 S.E.2d 433 (1982). Factual impossibility occurs when the objective of the defendant is prosc......
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United States v. Bryan, 72-1063.
...We therefore find no difficulty in reconciling our conclusion that a crime was committed here with the statements in United States v. Cohen, 274 F. 596, 597 (3d Cir. 1921): To constitute "stealing" there must be an unlawful taking . . . with intent to convert to the use of the taker and per......
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U.S. v. Portrait of Wally
...entrapment defense — one particular to the crime of receiving stolen goods. Some authorities suggest that. See, e.g., United States v. Cohen, 274 F. 596, 599 (3d Cir.1921) ("When the actual, physical possession of stolen property has been recovered by the owner or his agent, its character a......