United States v. Marpes, 10691

• Decision Date: 07 July 1952
• Docket Number: No. 10691,10692.,10691
• Citation: 198 F.2d 186
• Parties: UNITED STATES v. MARPES (two cases).
• Court: U.S. Court of Appeals — Third Circuit

198 F.2d 186 (1952)

UNITED STATES v. MARPES (two cases).

Nos. 10691, 10692.

United States Court of Appeals Third Circuit.

Argued May 19, 1952.

Decided July 7, 1952.

Rehearing Denied August 8, 1952.

Writ of Certiorari Denied November 10, 1952.

Gilbert E. Morcroft, Pittsburgh, Pa., for appellant.

Philip O. Carr, Pittsburgh, Pa. (Edward C. Boyle, U. S. Atty., Irwin A. Swiss, Asst. U. S. Atty., Pittsburgh, Pa., on the brief), for appellee.

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

Writ of Certiorari Denied November 10, 1952. See 73 S.Ct. 170.

KALODNER, Circuit Judge.

This is an appeal from judgments of conviction under two indictments and the sentences imposed thereon.

Defendant James Marpes and others were convicted under Indictment No. 13295 of having received and being in possession of certain merchandise stolen from an interstate truck shipment, and, under Indictment No. 13296, of stealing from the same shipment certain articles of wearing apparel of the value of $38,768.80, in violation of 18 U.S.C. § 659.¹ Defendant contends that the government failed to prove by substantial credible evidence (1) his connection with the crimes, (2) the interstate character of the shipment and (3) the value of the goods stolen. The objection as to value is directed to the jury's verdicts and the sentences imposed.

We are of the opinion that the evidence adduced by the prosecution was adequate, and that the convictions and sentences should stand.

The goods involved in this case were part of a shipment of women's clothing which was en route from New York to certain department stores in Pittsburgh, Pennsylvania, and nearby points. The goods had been transported in a trailer owned by Helm's New York Pittsburgh Motor Express. When the trailer reached its Pittsburgh terminal, some 168 cartons were loaded onto one of Helm's local trucks for delivery to Joseph Horne Company, one of the consignees. Shortly thereafter, this truck was stolen from in front of a restaurant while the driver was inside having a cup of coffee. The abandoned truck and part of the load were found later the same day. Two days later about 100 cartons marked with Joseph Horne Company's name were found in a garage on Western Avenue in Pittsburgh.

Defendant's connection with the crime was established by Vincent Empiri, an accomplice. He testified that he and the defendant, together with one DiPippa, were riding in the latter's car when they saw the unattended Helm's truck; that he drove the truck away, the others preceding him in the car; that they unloaded about half the packages in the Western Avenue garage and then abandoned the truck and the remaining packages.² Defendant did not take the stand, but offered the testimony of three local law officers to establish that he was in the Allegheny County Courthouse at the time of the events described by Empiri.

Defendant concedes that a conviction can be sustained upon the uncorroborated testimony of an accomplice, but contends that the overwhelming weight of the testimony of three disinterested witnesses should so discredit Empiri's testimony that no conviction should be allowed to rest thereon. We cannot agree. Whatever the explanation for the apparent conflict in testimony, the credibility of the witnesses was for the jury. Defendant did not complain of the instructions under which the issue was submitted. He cannot now be heard to say that the jury should have believed some witnesses and disbelieved others. United States v. Dewinsky, D.C. N.J.1941, 41 F.Supp. 149, 154. Opinion by Goodrich, Circuit Judge, sitting by assignment. Furthermore, Empiri's testimony was corroborated by that of other prosecution witnesses, who testified to having seen the defendant and DiPippa in the vicinity of the Western Avenue garage on the day of the crime.

Defendant also contends that the government failed to prove one of the elements of the crime, viz. — the interstate character of the shipment. The statute provides:

"To establish the interstate or foreign commerce character of any shipment in any prosecution under this section the waybill or other shipping document of such shipment shall be prima facie evidence of the place from which and to which such shipment was made."

In this case, however the government attempted to actually trace the shipment by producing the testimony of everyone who handled it from its point of origin in New York until the theft in Pittsburgh. It is defendant's position that the prosecution could have introduced the pertinent shipping documents and rested on the presumption created by the statute, but that, having attempted to establish the interstate nature of the goods by positive testimony,...