United States v. Handler

• Decision Date: 19 April 1944
• Docket Number: No. 270.,270.
• Citation: 142 F.2d 351
• Parties: UNITED STATES v. HANDLER.
• Court: U.S. Court of Appeals — Second Circuit

142 F.2d 351 (1944)

UNITED STATES v. HANDLER.

No. 270.

Circuit Court of Appeals, Second Circuit.

April 19, 1944.

George R. Handler, of Newark, N. J., for appellant.

James B. M. McNally, U. S. Atty., of New York City (Thomas K. Fisher, Asst. U. S. Atty., of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge.

The appellant was convicted under an indictment charging him with transporting in interstate commerce from Jersey City, N. J., to New York, N. Y., certain securities having a value in excess of $5,000, which securities, as he knew, "had theretofore been stolen, feloniously converted and taken feloniously by fraud and with intent to steal and purloin the same from Ann E. Bartlett." The complaining witness, Mrs. Bartlett, testified that the appellant struck up an acquaintance with her at a restaurant in Jersey City on the evening of July 29, 1940, learned of her ownership of the securities and her intention to sell them, stated that he worked in a bank, and arranged to meet her at noon the next day to look at the securities (Boston & Maine Railroad bonds). The statement that he worked in a bank was false. When Mrs. Bartlett met him on July 30th, she handed him the bonds and he checked their value against quotations in his newspaper. He then proposed marriage to her and, while she was sitting in the automobile "kind of dazed", he departed with the bonds in his hand. She testified that at no time had she asked him to sell them for her, but she also testified that she expected to receive money for the bonds; that "he said he would take them to a friend of his that afternoon and sell them." He carried the bonds to New York and sold them as his own, telling the purchaser that he had received them in exchange for property he had disposed of. In defense the appellant testified that he and Mrs. Bartlett had been friends for several months and that she gave him the bonds to sell in order to lend him their proceeds to help him out of financial difficulties. Concededly he used the proceeds without accounting to her. The jury was instructed that the issue was whether the defendant took the bonds with the intent to steal or purloin them before he transported them, or whether he took them with permission to sell. Neither party made any objection or exception to the charge. The verdict determined the issue adversely to the appellant.

The appellant contends that the evidence does not support the jury's verdict that he took the bonds "with intent to steal or purloin them." This raises questions as to the meaning of the quoted phrase as used in the National Stolen Property Act, the material portion of which is set out in the margin.¹ The appellant argues that the words "steal" and "purloin" are synonymous; that "steal" in a criminal statute signifies a taking which at common law would have been a larceny; and that under the evidence the jury could not find that the appellant took the bonds from Mrs. Bartlett with an intent to commit larceny. We shall assume, despite the government's argument to the contrary, that the facts of the case do not bring it within the technical definition of common law larceny. But we cannot accept the appellant's argument that a taking with intent to steal is synonymous with technical larceny. In various federal statutes the word "stolen" or "steal" has been given a meaning broader than larceny at common law. See United States v. Trosper, D.C.S.D.Cal., 127 F. 476, 477, "steal" from the mail; United States v. Adcock, D.C.W.D.Ky., 49 F.Supp. 351, 353, interstate transportation of "stolen" automobile; Crabb v. Zerbst, 5 Cir., 99 F. 2d 562, 565, "embezzle, steal or purloin" property of the United States. In the case last cited Judge Holmes said at page 565 of 99 F.2d:

"Stealing, having no common law definition to restrict its meaning as an offense, is commonly used to denote any dishonest transaction whereby one person obtains that which rightfully belongs to another, and deprives the owner of the rights and benefits of ownership, but may or may not involve the element of stealth usually attributed to the word purloin."

We think it clear that the National Stolen Property Act was not restricted to the transportation of property taken larcenously. The bill as originally passed by the Senate was limited to "stolen" property. 78 Cong.Rec. 6981. The House bill added "or taken feloniously by fraud or with intent to steal or purloin" (H.Rep. 1462, 73rd Cong.2d Sess.) and this was the bill which ultimately was enacted. 78 Cong.Rec. 8136, 8778, 8857. Obviously these added words were intended to extend the coverage of the Act beyond what would have been reached by the word "stolen". The words "feloniously converted" were inserted by the amendment of 1939. 53 Stat. 1178. In our opinion the statute is applicable to any taking whereby a person dishonestly obtains goods or securities belonging to another with the intent to deprive the owner of the rights and benefit of ownership. The appellant argues that United States v. Patton, 3 Cir., 120 F.2d 73, is contrary to this view. There the first two counts of the indictment charged the defendant with entering a national bank with intent to commit larceny therein, and a third count charged him with taking and carrying away money of a national bank "with intent to steal and purloin the same." The judgment of...