United States v. Gollin

• Decision Date: 11 February 1948
• Docket Number: No. 9405,9410.,9405
• Citation: 166 F.2d 123
• Parties: UNITED STATES v. GOLLIN. SAME v. RICHMAN.
• Court: U.S. Court of Appeals — Third Circuit

166 F.2d 123 (1948)

UNITED STATES v. GOLLIN.

SAME v. RICHMAN.

Nos. 9405, 9410.

Circuit Court of Appeals, Third Circuit.

Argued October 23, 1947.

Decided February 11, 1948.

Writ of Certiorari Denied April 19, 1948.

Frederic M. P. Pearse, of Newark, N. J. (Harold Simandl, and Samuel J. Kaufman, both of Newark, N. J., on the brief), for appellant, Benjamin Richman.

Charles J. Tyne, of Newark, N. J. (Edgar H. Rossbach, U. S. Atty., of Newark, N. J., on the brief), for appellee.

Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.

Writ of Certiorari Denied April 19, 1948. See 68 S.Ct. 905.

McLAUGHLIN, Circuit Judge.

The defendants-appellants were convicted under both counts of an indictment charging them with stealing 600 cases of beer constituting an interstate shipment, and with having guilty possession of the beer.¹

Appellants' first contention is that the government proofs did not show that the shipment was in interstate commerce at the time of the theft and that therefore the motion for acquittal should have been granted. The evidence indicated that early on the morning of June 15, 1946 at Ballantine's Brewery, Newark, New Jersey, the beer had been loaded on a truck which was then sealed and driven by the loader to a point on a public street in front of the brewery garage and two blocks from the loading platform where it was stopped to await its previously assigned driver or drivers who were to take it to North Tarrytown, N. Y. The loader left the completed bill of lading with the truck keys at the garage to be picked up by such driver. None of this testimony was contradicted. The defendants did not take the stand nor was any evidence offered on their behalf. When the loader returned, the truck and the beer were gone.

As seen, the brewery was the shipper and both intrastate and interstate carrier. The circumstances that the carriage was by the owner of the property did not put the property outside of the protection of the statute. Friedman v. United States, 1 Cir., 233 F. 429; certiorari denied 244 U.S. 657, 37 S.Ct. 744, 61 L.Ed. 1375; motion to dismiss granted 244 U.S. 643, 37 S.Ct. 650, 61 L.Ed. 1367; Marifian v. United States, 8 Cir., 82 F.2d 628; certiorari denied 298 U.S. 686, 56 S.Ct. 956, 80 L.Ed. 1406. With the simple fact of the brewery's role as shipper and carrier understood and accepted as it must be under the decisions, it seems to us that the evidence meets the test laid down in Hammer v. Dagenhart, 247 U.S. 251, at page 272, 38 S.Ct. 529, 62 L.Ed. 1101, namely, that the commerce begins when the transfer of the commodity to another state is actually commenced. The sealed shipment had in effect been turned over to the interstate driver. Every intrastate detail had been completed. The driver had only to pick up his bill of lading and keys and continue the interstate movement of the truck which had begun when it left the brewery loading platform.

The instant facts are quite unlike the illustration in Coe v. Errol, 116 U.S. 517, 6 S.Ct. 475, 479, 29 L.Ed. 715, of goods being moved for loading purposes from within the state to the depot in order to put them in the course of exportation. In the present issue, all that had been previously taken care of and the beer when stolen was actually in the course of the exportation itself. Here the exportation was "a fixed and certain thing", not "in fieri" as in the Coe case example. The facts existing at the time of the robbery are the controlling element with reference to the interstate commerce status of the beer and those facts indicate that the beer, as said in United States v. Fox, 2 Cir., 126 F.2d 237, 238, was in "the possession of any of those who are to forward * * * it upon an interstate journey." In the Fox matter the robbery occurred while the goods were in a truck taking them from the shipper to the interstate carrier within the one state. This was much the same as if the beer in question had been stolen from the brewery truck while the loader was taking it to the point opposite the garage where the driver was to take over. The Fox opinion relied on Sharp v. United States, 5 Cir., 280 F. 86, 88, which involved alcohol in a car in the possession of a local switching railroad and enroute to an interstate railroad. It was held that the shipment was interstate in nature at the time since "the car containing it was launched on its way to another state by being committed to the switching line for delivery to the carrying line. The switching was the initial step in an interstate carriage." Here the loader in delivering the sealed truck and the bill of lading to the interstate driver had started the truck on its interstate journey. The brewery thereafter, though the shipper, was functioning as its own interstate carrier. Cf. Wolk v. United States, 8 Cir., 94 F.2d 310, 312. That the brewery could have physically stopped the shipment then or later is unimportant. As said in Hughes Bros. v. Minnesota, 272 U.S. 469 at page 476, 47 S.Ct. 170, at page 172, 71 L.Ed. 359. "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 * * *." And the temporary stoppage of commerce on its way to the ultimate customer does not destroy the interstate commerce movement. See cases collected in United States v. Sheffield Farms Co., D.C.S.D.N.Y., 43 F.Supp. 1 at page 5.

A more serious situation is next urged in connection with a portion of the court's charge. The basis of the federal offenses involved was that at the time the beer was allegedly stolen and received, it was moving in interstate commerce. The District Judge in his charge discussing the interstate commerce phase said, "You are instructed that the Congress has provided that it is a criminal offense for anyone to steal goods from a motor truck while in interstate or foreign commerce." He then stated, "In this connection you are instructed that the evidence in this case discloses that the goods alleged to have been stolen were loaded into a truck at the loading platform of P. Ballantine & Sons in Newark, New Jersey. P. Ballantine & Sons was the shipper of said goods, and the same were consigned to Charles Leuberger at North Tarrytown, New York. A shipment of goods from Newark, New Jersey, to North Tarrytown, New York, would be a shipment in interstate commerce. After the truck in question was loaded, the evidence discloses that the door was closed and sealed, and thereafter the truck was moved to a garage on the premises of the shipper. The key to the truck and the bill of lading were left, and the truck was left to be driven in the usual course of business of the company to its proposed destination at North Tarrytown, New York. And the proof of the government tends to establish that the goods were stolen from the garage at the place where the truck was left after having been removed from the loading platform." Immediately following the above the court said, "Under this state of facts you are instructed that as a matter of law the truck was moving in interstate commerce at the time it is contended by the government that the beer was stolen therefrom. That is a matter of law. The facts are not disputed and that constitutes the jurisdiction of this court and is a matter for the court to determine and not a matter for the jury to determine."

It is true that the evidence pertaining to the interstate commerce status of the truck and its shipment was uncontradicted. And a study of the original transcript fails to reveal any indication of the defense affirmatively contesting that testimony. Horn, the assistant general transportation manager for the brewery, was the witness who told of drivers having been assigned to the truck and of their procedure in ascertaining their route, where the truck is, picking up their papers and keys, getting on their trucks, making deliveries, etc. No attempt to cross examine him was made on behalf of either defendant. And Grabowski, the loader, was not cross examined on any of the interstate commerce features of his testimony. Appellants' primary insistence both at the trial and at this appeal in connection with the interstate commerce feature seems...