United States v. Manuszak, 11664.

Citation234 F.2d 421
Decision Date19 June 1956
Docket NumberNo. 11664.,11664.
PartiesUNITED STATES of America v. Alfred MANUSZAK, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Donald J. Goldberg, Philadelphia, Pa., for appellant.

Robert W. Lees, Asst. U. S. Atty., Philadelphia, Pa. (W. Wilson White, U. S. Atty., Philadelphia, Pa., on the brief), for appellee.

Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.

STALEY, Circuit Judge.

This is an appeal by Alfred Manuszak who was convicted in the United States District Court for the Eastern District of Pennsylvania of offenses under 18 U. S.C. § 659 (theft of goods from an interstate shipment of freight) and 18 U.S.C. § 2314 (interstate transportation of stolen goods). Several questions are raised, including the validity of count 1 of the indictment, and the prejudicial effect of the district court's instructions to the jury.

The indictment in this case contains three counts. The first charged a theft of certain goods from an interstate shipment of freight, 18 U.S.C. § 659; the second charged an interstate transportation of stolen goods, 18 U.S.C. § 2314; and the third charged a conspiracy to commit offenses against the United States, 18 U.S.C. §§ 371 and 659. In all three counts, individuals other than appellant also were named, but we are now concerned only with appellant's indictment and conviction. The defense moved for acquittal on all counts at the end of the government's case and again after the defense rested. These motions were denied and the cause submitted to the jury which returned verdicts of guilty on all three counts. After further argument on the same motions at a later date, the district court granted a motion for judgment of acquittal on count 3, the conspiracy count; denied the motions for acquittal and for a new trial on the first two counts; and imposed a two-year sentence on each count, which sentences are to run concurrently.

One of appellant's contentions is that count 1 of the indictment should be quashed because it does not charge a crime. Although the alleged defect was not brought to the attention of the district court, it can properly be raised in this court, for such a defect shall be noticed at any time. Fed.Rules Crim. Proc. Rule 12(b) (2), Rule 54(a) (1), 18 U.S.C.; Johnson v. United States, 9 Cir., 1953, 206 F.2d 806, 808; United States v. Amorosa, 3 Cir., 1948, 167 F.2d 596, 598. Specifically, it is said that count 1, although charging a theft of interstate goods, does not contain any charge as to the specific place or facility from which the goods were taken; accordingly, an essential element of the crime is lacking, which circumstance renders the indictment invalid.

We think appellant's contention is a good one. The relevant portion of 18 U.S.C. § 659 reads:

"Whoever embezzles, steals, or unlawfully takes, carries away, or conceals, or by fraud or deception obtains from any railroad car, wagon, motortruck, or other vehicle, or from any station, station house, platform or depot or from any steamboat, vessel, or wharf, or from any aircraft, air terminal, airport, aircraft terminal or air navigation facility 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 * * * shall * * * be fined * * * or imprisoned * * * or both * * *."

Under this statute, it is not a federal crime to steal goods from an interstate shipment of freight unless the goods are taken from one of the specifically enumerated places or facilities. Other thefts, although of goods which are part of an interstate shipment, are not federal crimes. That being so, an indictment which only charges a theft of goods from an interstate shipment of freight without alleging that the goods were taken from one of the specifically enumerated places or facilities does not charge all the essential ingredients of a crime so far as the federal government is concerned. Wolkoff v. United States, 6 Cir., 1936, 84 F.2d 17; United States v. Cohen, 3 Cir., 1921, 274 F. 596; United States v. McCulloch, D.C.Ind.1947, 6 F.R.D. 559. Count 1 of the indictment in this case charges that appellant, along with other named individuals, "did, with intent to convert to their own use, knowingly and unlawfully steal, take and carry away certain goods which were interstate shipment of freight from Philadelphia, Pennsylvania to Geneva, Illinois, to wit: 100 cases of whisky, which said whisky had been theretofore consigned by the Continental Distilling Sales Company, Philadelphia, Pennsylvania, to the Geneva Bottling Company, Geneva, Illinois, as well as an interstate shipment of freight from Philadelphia, Pennsylvania, to Chicago Heights, Illinois, to wit: 835 cases of whisky, which said whisky had been theretofore consigned by the Continental Distilling Sales Company, Philadelphia, Pennsylvania, to the Chicago Heights Distributors, Inc., Chicago Heights, Illinois; in violation of Title 18 U.S.C., Section 659."

Nowhere in the language of count 1 can allegations be found specifying the place or facility from which the goods were taken. For this reason the count is a nullity as a charge of a federal crime and should be quashed. The defect is not one of form which will be overlooked after a verdict when no prejudice is shown. Although after a verdict every intendment should be indulged in support of the count, neither the verdict nor the evidence supporting the verdict can be used as a basis for dispensing with the rule that the indictment must state all the essential ingredients of the crime. See Hagner v. United States, 1932, 285 U.S. 427, 433, 52 S.Ct. 417, 76 L.Ed. 861; United States v. Debrow, 1953, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92; United States v. Tornabene, 3 Cir., 1955, 222 F.2d 875; United States v. Amorosa, 3 Cir., 1948, 167 F.2d 596, 598.

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