United States v. Le Fanti

• Decision Date: 22 January 1919
• Citation: 255 F. 210
• Parties: UNITED STATES v. LE FANTI.
• Court: U.S. District Court — District of New Jersey

255 F. 210

UNITED STATES v. LE FANTI.

United States District Court, D. New Jersey.

January 22, 1919

Charles F. Lynch, U.S. Atty., and Samuel I. Kessler, Asst. U.S Atty., both of Newark, N.J.

Louis G. Morten, of Jersey City, N.J., for defendant.

HAIGHT District Judge.

The defendant, Dominick Le Fanti, was indicted jointly with Joseph A. Reaves and Frank McManus, for having in their possession a bale of silk which had theretofore been stolen from a platform or depot of the American Railways Express Company, at Jersey City, in this district, and which was a part of an interstate shipment of express, knowing the same to have been stolen, in violation of Act Feb. 13, 1913, c 50, 37 Stat. L. 670 (Comp. St. Secs. 8603, 8604). Le Fanti (hereinafter referred to as the defendant) was tried alone and convicted. While I have never entertained any doubt that the verdict of the jury, under the instructions of the court was entirely correct, I allowed the rule to show cause, so that I could consider, more carefully than it was possible to do during the course of the trial, the question whether under the aspect of the evidence most favorable to the government, the defendant had the goods in question 'in his possession' within the meaning of the act. Upon the return of the rule to show cause some additional reasons for setting aside the verdict, which were not urged during the trial, have been advanced. They will be hereafter discussed. I will first take up the question above stated.

1. It was permissible, and the jury were quite justified in finding-- and under the instructions which they received their verdict establishes that they did find-- the following facts: McManus and Reaves, two boys aged 16 and 24, respectively, who were employes of the American Railways Express Company, on the morning of September 17, 1918, stole a bale of silk which was a part of an interstate shipment of express, from the platform or depot of the express company, in Jersey City. During the early evening of the same day, they drove the wagon in which they had been making deliveries of express packages during the day, and which bore the name of the Wells-Fargo Express Company, plainly written thereon, to defendant's saloon for the purpose of selling to him the bale of silk, as they had done with another bale four or five days previous. Reaves first went into the defendant's saloon, to interview the defendant, whereupon the latter told him to drive away, as his place of business was being watched. Thereupon the two boys drove around the block, and Reaves waited while McManus went back to find out what disposition the defendant wished them to make of the silk. The latter, upon being advised by McManus that he and Reaves had a bale of silk on their wagon, told McManus to drive 'to the dumps,' a dark and lonely spot used for dumping a part of the city's refuse, and drop the bale of silk off the wagon, and that he would follow in an automobile and pick it up. The two boys then proceeded to do as the defendant had directed them. On their way towards the 'dumps,' the defendant passed them in an automobile and motioned to them to keep going on in the direction in which they were proceeding, and which led to the 'dumps.' The lights on his automobile were at that time lighted. When they reached the 'dumps,' the lights on the automobile were extinguished, and the defendant made a motion with his hand, which the boys interpreted to be a signal to put the bale of silk off; which they accordingly did, among some weeds. McManus then drove the wagon to the express company's stable, while Reaves waited five or ten minutes for Le Fanti to come after the silk, and, when he did not do so within that time, Reaves went home. Both he and McManus were arrested that evening, as was also Le Fanti. The bale of silk was found in the place where the boys had deposited it. There was no evidence that defendant ever had it in his physical possession. His possession, if any, therefore, was constructive. The statute under which the defendant was indicted and convicted, so far as the point in question is concerned, differs in no material respect from the English statutes and those of the various states which have endeavored to bring within the pale of the criminal law receivers of stolen goods. It has long been settled that, under such statutes, actual manual or personal possession is not a necessary element of the crime, but it is sufficient if the possession be constructive, that is to say, if the goods are shown to have been under the control of the person charged, although they were in the actual physical possession of another. Reg. v. Wiley, 15 Jurist, 134; Reg. v. Smith, 1 Jurist (N.S.) 575; Reg. v. Hobson, 6 Cox, C.C. 410; Reg. v. Miller, 6 Cox, C.C. 353; Reg. v. Rogers, 2 Moody's Crown Cases, 85; Commonwealth v. Kuperstein, 207 Mass. 25, 92 N.E. 1008; State v. Stroud, 95 N.C. 626; State v. Conklin, 153 Iowa, 216, 133 N.W. 119; Huggins v. State, 41 Ala. 393; Kaufman v. State, 70 Tex.Cr.R. 438, 159 S.W. 58; Commonwealth v. Light, 195 Pa. 220, 45 A. 933; 2 Bishop on Criminal Law, Sec. 1139; 2 Wharton's Criminal Law (11th Ed.) p. 1453, Sec. 1236.

Of course, if constructive possession is relied upon and it appears that the arrangement by which the accused is to acquire possession or title has not been consummated, but is still inchoate-- as where the accused is still bargaining to purchase or acquire the goods-- such possession would not justify a conviction of the accused, for under such circumstances the goods would not be under his control in the sense required by the before-mentioned rule. And this is the principle upon which the decisions in Reg. v. Hill, 13 Jurist, 545, Reg. v. Wiley, 15 Jurist, 134, and Commonwealth v. Sheriff, 3 Brewst. (Pa.) 342, were rested. The question then is whether, under the before stated facts, the transaction under which the defendant was to acquire 'actual' possession of the stolen silk had been so far consummated, prior to the recovery of the same by government officials, as to justify the conclusion that it was constructively in his possession, or whether the necessary conclusion was that the transaction was incomplete, so that there was a locus penitentiae, until he should himself, or through agencies other than Reaves and McManus, have taken actual possession of the same. I perceive no difficulty, either on principle or authority, in holding that, although Reaves and McManus were the thieves, their actual possession could in law be the defendant's possession quite as well as could the possession of any other persons, who were not the thieves, be his possession. Such I think is the clear effect of the decisions in Reg. v. Wiley, supra; Reg. v. Smith, supra; State v. Stroud, supra; and Kaufman v. State, supra. In fact, Lord Chief Justice Campbell said in Reg. v. Smith that it had been held in Reg. v. Wiley (in which he sat) that possession might be jointly in the receiver and the thief. On principle this must be so, because the decisive point is whether the person who had actual possession was the mere agent of the defendant, and not what his connection with the stolen goods may theretofore have been. Of course, the latter consideration may be an element in determining whether or not he was a mere agent, and hence whether the transaction had been consummated in the sense before mentioned.

If the jury believed the story of Reaves and McManus as outlined in the before-recited statement of facts, as their verdict demonstrates that they did, there would seem to be no question that, at least from the time the bale of silk was thrown off of the express wagon at the 'dumps,' it was in the constructive possession of the defendant, for it was then under his control, in a place where he had directed the boys to take and deposit it, and where he had arranged with them, prior to their taking it there, that he would come and pick it up. They had followed his instructions in all respects. Indeed, the conclusion seems quite irresistible that, under the circumstances of this case, from the time he first told them what to do with the silk, that they were from thence on merely his agents, and that their possession was his. There was nothing inchoate so far as the transaction by which he was to acquire actual possession was concerned. His ultimate actual possession was not dependent upon any agreement to be made as to price, or anything of the sort; nothing remained to be done so far as consummating the bargain was concerned; he directed the boys what to do with the silk, and they followed out his instructions. Indeed, the facts of this case cannot be well distinguished from those which were before the courts in State v. Stroud, supra, and Kaufman v. State, supra. Although no exception has been taken to the charge on this point, except as it is embraced within the question under discussion, I have carefully examined it, and think that it properly stated the before-mentioned rules of law and submitted the decisive question to the jury. The jury, after being instructed that there was no testimony to the effect that the defendant had ever had physical control of the bale of silk and that it was not necessary that he should have had such, it being sufficient if it was in the possession of some one else and was there subject to his control and dominion, and as to the circumstances under which the boys could be considered as to his agents, were charged as follows:

'If you believe the story of McManus, supplemented as it is by the additional testimony of Reaves, as to what was done and as to his first conversation with Le Fanti, then you would be justified in

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