United States v. Stephenson
| Decision Date | 09 March 1953 |
| Docket Number | No. 1491 Cr.,1491 Cr. |
| Citation | 110 F. Supp. 623 |
| Parties | UNITED STATES v. STEPHENSON. |
| Court | U.S. District Court — District of Alaska |
James von der Heydt, U. S. Atty., Nome, Alaska, for plaintiff.
Quincy Benton, Nome, Alaska, and Ralph Moody, Anchorage, Alaska, for defendant.
After a trial by jury, defendant was convicted of receiving stolen government property in violation of Title 18, Section 641, U.S.C.A.; at the conclusion of the government's case, defendant moved for a verdict of acquittal basing her motion primarily on the assertion that a witness for the government, Josephus Tester, was an accomplice, and that there had not been sufficient corroboration of his testimony. The Court denied the motion on the basis that under the facts as given, the witness could not be considered an accomplice. Defendant was also advised at that time that no accomplice instruction, under the facts as then existed, would be given unless defendant submitted authorities warranting a contrary view. At the conclusion of the trial, there was no renewal of the motion by defendant, nor was there any other motion or argument presented. Although afforded an opportunity to do so, the defendant neither tendered nor requested any desired instructions nor were any exceptions made to the instructions given by the Court. No motion for new trial was made, however defendant filed a notice of appeal, and without the formality of a written motion or application, now comes before the Court on an oral motion for the allowance of bail pending appeal under Rule 46(a)(2), Federal Rules of Criminal Procedure, 18 U.S.C.A. In contending that the case involves a substantial question which should be determined by the appellate court as provided by the foregoing rule, the defendant makes the following points:
1(a). One Josephus Tester, a witness for the government, was an accomplice and that the Court erred in not giving an instruction to the effect that such testimony should be viewed with distrust.
1(b). That the Court erred in not instructing the jury that the testimony of an accomplice, unless corroborated, is not sufficient to convict.
2. That the Court erred in not giving a directed verdict at the conclusion of the government's case for the reason that there was not sufficient identification of the corpus delicti, to-wit: coffee alleged to be government property and stolen from the government.
3. That certain members of the jury were disqualified to serve by virtue of lack of intelligence and knowledge of the English language.
The defendant relies most heavily upon points 1(a) and 1(b) above. I find little if any merit to the other contentions of defendant and it is not necessary to here consider them. The prevailing rule in both state and federal jurisdictions is that a thief is not an accomplice of one subsequently receiving the stolen goods, and vice versa, the receiver is not an accomplice of the thief. Leon v. State, 21 Ariz. 418, 189 P. 433, 9 A.L.R. 1397; Curley v. Automobile Finance Co., 343 Pa. 280, 23 A.2d 48, 136 A.L.R. 1087. Defendant concedes that this is the general rule, but contends that the facts in the instant case bring it within the many exceptions. In support of that contention, defendant cites the case of People v. Kupperschmidt, 237 N.Y. 463, 143 N.E. 256, annotated in 32 A.L.R. 447. It is true that in the latter case, the Court held that the receiver cannot take with guilty knowledge unless aided therein by the act of the thief in delivery of the goods, and that the thief is therefore an accomplice. It is apparent, however, that the Court in applying that test adopted the minority rather than the majority rule. Defendant, in effect, then, is suggesting that the prevailing rule be rejected by this Court in favor of the minority rule followed in the Kupperschmidt case. This suggestion must be rejected.
The general test which has been applied in an imposing array of state and federal jurisdictions with reference to the point before us, is whether or not the witness could be successfully prosecuted and convicted of the same crime with which the defendant is charged. This rule has been established and followed in Diggs v. U. S., 9 Cir., 220 F. 545. Other jurisdictions have applied this test to the particular question of stealing and receiving stolen property. Weisberg v. U. S., 49 App.D.C. 28, 258 F. 284; U. S. ex rel. v. Mulligan, 2 Cir., 50 F.2d 687; Cartwright v. U. S., 5 Cir., 146 F.2d 133; Aaronson v. U. S., 4 Cir., 175 F.2d 41.
There are of course circumstances under which a receiver of stolen goods, by virtue of conduct in aiding and abetting the actual theft, could be guilty of a larceny of the property in question, and the converse would be true under similar circumstances wherein the thief could also be convicted of receiving. However in all such instances, it must be shown that a conspiracy existed between the parties or that at least there was a concert of action between the receiver and the thief to the extent that there was actual participation by both parties in the crime charged. Under Section 2, Title 18 U.S.C.A., defining principals, one court has gone so far as to hold that one might be rightfully convicted of both receiving and stealing the same property. Aaronson v. U. S., supra. Such cases, however, can be readily distinguished from the instant case.
The witness Tester testified substantially that he was a Basic Airman stationed at Nome Airfield Base, and whose duties were generally that of transporting food supplies from warehouses on the base to the mess hall, and in some instances to government ships anchored in the immediate vicinity. He testified that he was acquainted with the defendant and had on several occasions been present in her place of business, which was a combination restaurant and bar, while wearing his uniform. That on the evening of the date in question, he approached the defendant asking her if she needed anything and was informed by her that she could use 400 pounds of coffee. Subsequently, on the same night, the witness, with a companion, without authority entered one of the warehouses on the Nome Airfield Base and removed ten pasteboard cartons each containing two 20 pound tins of coffee which they transported to a point near defendant's place of business, at which time, because of mechanical trouble with the government truck then being used, it was necessary for them to conceal the coffee in some nearby bushes. Later, during the same evening, they returned to defendant's place of business, borrowed her jeep, and completed the transportation of the coffee. Upon delivering the coffee, the defendant advised Tester that she did not have the previously agreed price of $300 and offered $200 instead, which the witness and his companion...
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