United States v. Satuloff Bros.

• Citation: 79 F.2d 846
• Decision Date: 02 December 1935
• Docket Number: No. 106,107.,106
• Parties: UNITED STATES v. SATULOFF BROS., Inc., et al.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

79 F.2d 846 (1935)

UNITED STATES v. SATULOFF BROS., Inc., et al.

Nos. 106, 107.

Circuit Court of Appeals, Second Circuit.

December 2, 1935.

Layton H. Vogel, of Buffalo, N. Y. (James O. Moore, of Buffalo, N. Y., of counsel), for appellants.

George L. Grobe, U. S. Atty., of Buffalo, N. Y. (Robert M. Hitchcock, Asst. U. S. Atty., of New York City, of counsel), for the United States.

Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

MANTON, Circuit Judge.

The indictment, in one count, charged appellants with violation of section 1 of the Elkins Act, as amended by Act June 29, 1906, § 2 (U. S. C. title 49, § 41 (1), 49 USCA § 41 (1), in that each appellant unlawfully and knowingly solicited a rebate and concession in the sum of $896.19 from the Wabash Railway Company by means of a device, to wit, a false claim for the loss of part of a carload of turkeys while in transportation in interstate commerce, to the corporate appellant. The basis of the appellee's claim is that the corporate appellant, through the individual appellant, its secretary and treasurer, surreptitiously removed 18 barrels of turkeys from a carload consigned to them comprising a shortage later claimed from car 152 of the railroad company, shortly after 6 o'clock in the morning of November 20, 1932. This was done when no representative of the railroad company was present in the yard to check out the 18 barrels, and thereafter the corporate appellant by the individual appellant filed a claim for this shortage against the railroad company. An action was brought on said claim and recovery had in the City Court at Buffalo, N. Y. This transaction is the basis of the charge in this indictment.

On November 16, 1932, car 152 arrived at the terminal, was inspected by the inspector, who was accompanied by a checker, both employed by the railroad company. They broke the seals and inspected the contents of the car and found 80 barrels of dressed poultry in good condition, except that 4 were slightly broken; each weighed 254 pounds. It was the practice of the consignee and the railroad company for the consignee to bring an order to the office of the railroad company for the number of packages desired out of a particular car, specifying the number and car, whereupon one of the railroad men would go to the car and check out that which the order specified. It was the practice not to permit the consignee to remove freight from the car until an order was submitted. All cars were sealed at the completion of the day's work and the seals were broken daily on occasions when the consignees would submit orders. Thus when freight was taken from car 152, a record was made. The seal records pertaining to car 152 were produced and identified, as was the time record showing the dates and hours of employment, including the time of arrival and the time of departure of various employees of the railroad who had to do with this car. The first removal from car 152 was made November 18th at 5:15 p. m., when one barrel was removed; there was an order presented for this barrel. There were no further deliveries therefrom until the morning of November 20, 1932. That morning, upon the arrival of the checker, he observed no one was at car 152. Later two trucks were loading poultry at a car immediately adjoining No. 152. He identified the driver of each truck and they were both in the service of the corporate appellant. The checker immediately went to the trucks to get the order for the removal from the cars for that which was on the trucks. A driver, Batterson, gave the checker an order which was for a clean-up of car 197, and the driver informed the checker that in addition to the 7 barrels which were then on the truck, he had removed 18 barrels on his preceding trip that morning. The checker took the order and saw that car 197 was empty and wrote thereon "25 barrels," also "before 7," to show that the checker did not actually check out that which was removed from car 197 for it was done prior to his arrival at work. Batterson gave no order for any removal from 152. The seals on 152 had been broken as well as those on three other cars, one of them 197. The door of car 152 was closed. Batterson, the truck driver, states that on this morning he arrived at work at 6 a. m., and received an order for a clean-up on a car of poultry. He immediately got his truck and went to car 197 against which the order was drawn. Upon arriving at the car he was stopped by Nathan Satuloff, an uncle of the individual appellant, to whom he stated that he had an order against car 197 and Satuloff told him, "Never mind that." They had another car, No. 152, open and he waved him to back his truck to that open door. Thereupon 18 barrels were loaded from car 152, and when the driver got to the warehouse, he was asked what car they were from and replied No. 152, and the individual appellant spoke up and said, "I will receive these 18 barrels." The 18 barrels from car 152 were unloaded, and Batterson went back to the yards and loaded 18 barrels from car 197 pursuant to his clean-up order, took them to the warehouse, and returned to the yard and loaded the remaining 7 barrels from car 197 at which time he met the checker. Sturm, an employee of the corporate appellant, corroborated Batterson that the 18 barrels were taken from car 152 and that the individual appellant said, "Never mind, I will take care of that myself." Thus there was evidence for submission to the jury supporting the charge of surreptitiously removing the 18 barrels from car 152 on the morning in question.

Subsequently a suit was brought in the City Court of Buffalo and tried before a judge, without a jury, and judgment rendered for the corporate appellant against the railroad company. A notice of appeal was served, but the appeal has not been argued.

A motion was made to quash the indictment predicated in part upon the judgment in the civil suit and denied. The appellants' attorneys were not permitted to comment upon the judgment in the opening statement and, on objection by the appellee, the judgment roll was not admitted in evidence. These are now assigned as errors, the appellants urging that the judgment in the civil suit in their favor is admissible in this criminal prosecution to refute the charges of guilt.

In the civil action, the corporation alleged that the railroad company so improperly handled the shipment as to lose 18 barrels. The railroad company denied the alleged breach of the contract of carriage and affirmatively charged that the agents of the appellant corporation had trespassed upon the railroad property and, without permission and in violation of the statute, broke the seals of the car and removed the 18 barrels. Thus the issues were such that the verdict for the appellant corporation in the civil action and judgment against the appellants in this criminal action could not both be predicated upon true facts.

The judgment in the civil action may well be said to be a verdict on the evidence there that it was more probable than not that the facts plaintiffs there alleged were true. Between the parties to that suit this verdict was final unless reversed on appeal. As against one not a party to that suit, it is not binding. The civil action was tried between different parties upon different issues. Judgments and decrees rendered in civil suits are inadmissible in evidence in criminal prosecutions as proofs of any facts determined by such judgments or decrees, and the reason for the rule as stated has been that the parties are different and that the quantum of proof required in one...