United States v. McNeil, 242

• Decision Date: 14 May 1958
• Docket Number: No. 242,Docket 24845.,242
• Citation: 255 F.2d 387
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert John McNEIL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

255 F.2d 387 (1958)

UNITED STATES of America, Plaintiff-Appellee, v. Robert John McNEIL, Defendant-Appellant.

No. 242, Docket 24845.

United States Court of Appeals Second Circuit.

Argued April 11, 1958.

Decided May 14, 1958.

Jacobs, Jacobs, Jacobs & Jacobs, New Haven, Conn., Israel J. Jacobs, Richard L. Jacobs, New Haven, Conn., for appellant. Argued by Stanley A. Jacobs, New Haven, Conn.

Simon S. Cohen, U. S. Atty., Hartford, Conn., W. Paul Flynn, Asst. U. S. Atty., New Haven, Conn., for appellee.

Before SWAN, HINCKS and MOORE, Circuit Judges.

PER CURIAM.

Appellant was convicted upon verdict of a jury for violation of 18 U.S.C.A. § 659 (possession of goods stolen from an interstate shipment, knowing the same to have been stolen) and was sentenced to six months imprisonment. He offered no evidence at the trial but moved for acquittal when the Government rested. His appeal assigns error to the denial of this motion and to portions of the court's charge to the jury.

With respect to denial of acquittal, the contention is that defendant's possession of the goods with guilty knowledge was not proven. Looking at the evidence in the light most favorable to the prosecution, as we must on a motion for acquittal, we think that the issue was properly left to the jury's determination. The evidence established that a shipment of 607 cases of rubber floor title left Waltham, Massachusetts, on Friday, January 25, 1957 for transportation by trailer truck to New York City. On Saturday and Sunday the truck laid over at the carrier's terminal in Wallingford, Connecticut. On Monday the truck proceeded to its destination in New York, where it was found that 102 cases of the shipment were missing. Even before the carrier knew that these cases were missing, they had been discovered by the police of North Haven, Connecticut, which is only a few miles distant from Wallingford, at four o'clock in the morning of Monday, January 27, on premises of, or adjacent to, the house were appellant lived.¹ The police had been summoned by a neighbor who was alarmed by hearing the noise caused by unloading the tile from a motor vehicle on the premises of appellant's residence. When the police arrived they found a partially unloaded suburban type truck in which were 21 cases of the stolen tile. The other 81 cases were in a chicken coop on the lot adjacent to appellant's residence. The motor of the suburban truck was still warm and the keys were in the ignition. No person was seen in the truck or coop, and the police made no inquiry at the time at appellant's house. The truck was registered in appellant's name; and not long before January 27 he had asked permission to use the coop to store furniture, and had obtained scrap lumber for the purpose of boarding up the coop windows. There was also testimony that a padlock had recently been put on the coop door, but no direct evidence proved who put it on or who had a key to unlock it. Subsequent to finding the stolen tile, several police officers and an FBI agent talked with appellant. They testified that he said he knew nothing about the tile, that he had rented the coop to one Chick Jameson, "address unknown, who he met casually," for $25.00 a month, and had also rented the suburban truck to him for $10.00; that he also said he was playing poker on the morning the tile was found by the police, with Mickey Zello (called "Mickey Mouse") and two unknown men at the Blue Bell Club on Grand Avenue. The police made some attempt, without success, to find Jameson and Zello. There is no indication that they went to the Blue Bell Club to check appellant's alibi.

Appellant's brief, page 7, concedes that it might be inferred from the facts proven "that whoever...