United States v. Gollin, 9819

• Decision Date: 22 June 1949
• Docket Number: No. 9819,9821.,9819
• Parties: UNITED STATES v. GOLLIN et al.
• Court: U.S. Court of Appeals — Third Circuit

176 F.2d 889 (1949)

UNITED STATES v. GOLLIN et al.

Nos. 9819, 9821.

United States Court of Appeals Third Circuit.

Argued April 22, 1949.

Decided June 22, 1949.

Writ of Certiorari Denied October 17, 1949.

Frederic M. P. Pearse, Newark, N. J., for appellant Gollin.

Harold Simandl, Newark, N. J., for appellant Richman.

Charles J. Tyne, Asst. U. S. Atty., Newark, N. J. (Alfred E. Modarelli, U. S. Atty., Newark, N. J., on the brief), for appellee.

Before BIGGS, Chief Judge and McLAUGHLIN and O'CONNELL, Circuit Judges.

Writ of Certiorari Denied October 17, 1949. See 70 S.Ct. 89.

BIGGS, Chief Judge.

Nathan Gollin and Benjamin Richman at their second trial, as at their first, were convicted in the court below on an indictment of two counts charging each of them with violation of the Act of February 13, 1913, c. 50, Section 1, 37 Stat. 670, as amended by the Act of January 28, 1925, c. 102, 43 Stat. 793, as amended by the Act of January 21, 1933, c. 16, 47 Stat. 773.¹ The crimes of the defendants were committed either on the night of June 14 or early in the morning of June 15, 1946. It follows therefore that the amendment of July 24, 1946, c. 606, Section 1, 60 Stat. 656, was not in force at the time of the theft. The statute as amended, including the amendment last referred to, was embodied in Section 409 of Title 18 U.S.Code, 1946 ed. now 18 U.S.C.A. §§ 659, 660, 2117. The statute as it was prior to the amendment of July 24, 1946, was included in Section 409 of Title 18 U.S.Code, 1940 ed. These observations will be seen to be pertinent hereinafter. Cf. note 1 cited to the text in our prior opinion, 166 F.2d 123, at page 124. The first count of the indictment charged Gollin and Richman with stealing 600 cases of beer moving as and constituting freight in the course of shipment in interstate commerce. The second count charged wrongful possession of the stolen beer. Both defendants were found guilty on both counts and were sentenced to two years on each count, the terms to run concurrently. Both defendants have appealed.

The facts are substantially the same as were before the court in the first appeal.² We shall note some small discrepancies later. Briefly set forth the facts are as follows. P. Ballantine & Son ("Ballantine") owns and operates a brewery occupying 9 or 10 adjacent city blocks in Newark, New Jersey. The brewery is near the outskirts of the city and Ballantine makes full use of the city streets adjoining the buildings for the parking and loading of trucks incidental to the operation of the plant and the shipping of its product in both intra-and interstate commerce. On the evening of June 14, 1946, a truck, No. 327, owned by Ballantine and licensed for interstate commerce by the Interstate Commerce Commission, was moved to a loading platform on Christie Street in front of one of Ballantine's plants and was loaded by Ballantine's employees with 600 cases of bottled beer. After the loading had been completed by the loaders, Borowsky, a loader, but qualified also as a driver, pulled the truck a few feet away from the loading platform. A checker, Baumgartner, then checked the load, and sealed the trailer doors³ albeit they were not locked.

After the truck was sealed Borowsky procured the bill of lading, which had been previously filled in and signed by the warehouse foreman, Pearson, and signed it "* * * to release the truck from the platform". The shipment was consigned to Luberger, North Tarrytown, New York. Borowsky⁴ then moved the truck approximately two blocks and parked it on the street opposite the company garage maintained by Ballantine, where it was to await the arrival of two previously assigned drivers. He removed the keys from the truck, placed them on a rack in the garage and inserted the bill of lading through the key ring. About two or three hours later the truck was discovered to be missing. It was located about 4 A. M. on Sherman Avenue in Newark, New Jersey. The seal had been broken and the beer removed.

Emer, the assistant delivery superintendent of Ballantine, testified that among his duties was that of scheduling drivers to drive the company owned trucks and trailers. He stated that he had prepared the assignment sheet⁵ for company trailers for June 15, 1946 in quadruplicate and had posted it during the afternoon of June 14 between the hours of 12 noon and 4 P. M. He testified that the original sheet had been posted on the bulletin board at plant No. 1 near the time clock where the drivers "punch in" for starting work. A copy had been posted in the dispatch office, a second copy turned over to "a man named Coyne,"⁶ and a third was kept by Emer for his records. Emer further testified that under the usual practice at Ballantine the drivers would have checked the assignment sheet each night to see the time they were to leave on the following morning and, on reporting in the morning to the dispatch office would first locate the truck assigned to them and would then go to the dispatch office and sign out for the truck. Emer stated that the truck keys might be at either the dispatch office or at the garage.

The defendants assert that certain highly persuasive "new facts" were brought into the record at the second trial, facts which were not introduced at the first hearing. A careful examination of the records of the first and second trials discloses the following new items of evidence. Borowsky was actually a loader and truck No. 327 was not loaded by him. Drivers of brewery trucks and trailers examined after four o'clock in the afternoon on the day preceding the day on which they were to take trucks out the assignment sheet or daily trailer schedule, designating them to trucks or trailers. See the summation of the testimony of Emer referred to previously in this opinion and note 5, supra. It was the practice for drivers to "sign out" at the company garage. There was introduced into evidence a sheet headed "Checker's Sheet No. 38,801" relating to truck No. 327. This contains the legend "Truck repairs needed" with a line left blank to indicate the necessary repairs. This line contains no notation.⁷

The defendants contend that the gist of the offense defined by the statute makes it a crime for any person to steal from a truck goods "* * * moving as or which are part of or which constitute an interstate * * * shipment of freight * * *". They assert that Borowsky who first moved the loaded truck a few feet from the loading platform before it was sealed and later, after it had been sealed, parked it about two blocks from the loading platform on a public street, was a loader and not a driver and that therefore no interstate movement had commenced. They stress the fact that a driver would not start any journey, intrastate or interstate, until he had signed out and that if "* * * for any reason, he was not allowed to `sign out' he would not obtain possession of the truck nor would the interstate journey begin." They lay much emphasis on the decision of the Supreme Court in Hughes Bros. Timber Co. v. Minnesota, 272 U.S. 469, 475-476, 47 S.Ct. 170, 172, 71 L.Ed. 359, wherein Mr. Chief Justice Taft stated, "The conclusion in cases like this must be determined from the various circumstances. Mere intention by the owner ultimately to send the logs out of the state does not put them in interstate commerce, nor does preparatory gathering for that purpose at a depot. It must appear that the movement for another state has actually begun and is going on. Solution is easy when the shipment has been delivered to a carrier for a destination in another state. It is much more difficult when the owner retains complete control of the transportation and can change his mind and divert the delivery from the intended interstate destination as in The Champlain Company case Champlain Realty Co. v. City of Brattleboro, 260 U.S. 366, 43 S.Ct. 146, 67 L.Ed. 309, 25 A.L.R. 1195. The character of the shipment in such a case depends upon all the evidential circumstances looking to what the owner has done in the preparation for the journey and in carrying it out. The mere power of the owner to divert the shipment already started does not take it out of interstate commerce if the other facts show that the journey has already begun in good faith and temporary interruption of the passage is reasonable and in furtherance of the intended transportation, as in the Champlain case."

The question presented for determination by the Supreme Court in the Hughes case was whether the State of Minnesota could tax personal property which was in actual transit in interstate commerce. The Supreme Court decided that the State of Minnesota could not do this. There is a clear suggestion in the opinion that when a shipment has been delivered to a carrier for destination in another State the goods are in interstate commerce though the Court points out that the question of goods are or are not in interstate commerce is much more difficult to decide when the "owner" retains complete control of the transportation as in the case at bar. In the instant case Ballantine would have retained control of the beer until its actual delivery to the consignee at North Tarrytown, New York.

But here the statute, as will be observed for example from an examination of the pertinent statute, defines the offense not only as the stealing of goods from a shipment actually in interstate transit but also as a stealing of goods "* * * which constitute an interstate * * * shipment * * *." In addition, stealing from a "railroad car", "truck", "station house", "platform", "terminal", and "wharf" are included within the ambit of the law. The last sentence of the statute expressly provides that the word "`truck' shall include any truck * * * of any person, firm, association or corporation having in * * * its custody therein or thereon⁸ any freight, express, goods, chattels, shipments or baggage moving as or which are a part of or which constitute an interstate or...