Weisberg v. United States

• Decision Date: 05 May 1919
• Docket Number: 3229.
• Citation: 258 F. 284
• Parties: WEISBERG v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

258 F. 284

WEISBERG v. UNITED STATES.

No. 3229.

United States Court of Appeals, District of Columbia.

May 5, 1919

Submitted April 1, 1919.

Appeal from the Supreme Court of the District of Columbia.

Henry E. Davis and Joseph B. Stein, both of Washington, D.C., for appellant.

John E Lasky, U.S. Atty., and James J. O'Leary, Paul B Cromelin, and J. B. Archer, Jr., Asst. U.S. Attys., all of Washington, D.C.

ROBB Associate Justice.

Appellant defendant below, was convicted of the crime of receiving stolen goods and sentenced to imprisonment for three years.

For the government, John Chatt, a colored driver for the Jacobs Transfer Company, testified that upon one occasion, when he was passing defendant's grocery store, defendant came out and offered to buy anything he (witness) might get hold of, whether stolen or not; that upon the occasion in question witness got a consignment of 30 bags of sugar from Pennsylvania Depot, to be delivered at a place beyond defendant's place of employment; that--

'defendant stopped him before he went down to get the sugar, * * * and he got the sugar on (the 30 bags), and came by and sold 500 pounds of it; did not carry the sugar back to the Jacobs Transfer place and deliver it from there, did not carry it anywhere, except from the depot up to defendant's place, and told defendant he had this sugar and sold 500 pounds of it for $18.'

Witness further testified that after he had sold the sugar to defendant--

'he took it to the alley between E and F, around back of the Continental Hotel, a little store on the corner of the alley; doesn't know whose store it is; defendant told him to take it there, and he took it there and put the sugar in the store. Defendant paid him for the sugar at the junk shop, after he took the sugar around, right after he delivered the sugar, about 20 minutes.'

Defendant testified that Chatt--

'came over to the junk ship and brought a ticket, and said that witness' wife sent him for the sugar; that she had no money to pay for it, and he brought a slip for $19, and said witness' wife sent him. * * * Chatt said his (defendant's) wife didn't have any money, and sent him to the junk shop, and he paid Chatt over there.'

On cross-examination defendant said:

'Chatt had the sugar with him; said his (witness') wife sent him over to where he (witness) worked; that witness should pay him for the sugar, and witness told him to carry it around to the store and he would pay him (Chatt).'

Under the evidence Chatt clearly was guilty of larceny and not embezzlement. Talbert v. United States, 42 App.D.C. 1. As to the defendant, he contends that since the evidence shows he advised, incited, or connived at the offense (Code, Sec. 908), he was a principal in the larceny, and therefore could not be convicted of receiving stolen goods in the theft of which he had participated.

The authorities are not in harmony upon this question. It has been held that a prosecution for receiving and concealing stolen goods may be maintained against one who was present and aiding in the commission of the larceny, and received the goods from the actual principal. Smith v. State, 59 Ohio St. 350, 52 N.E. 826; Jenkins v. State, 62 Wis 49, 21 N.W. 232; Adams v. State, 60 Fla. 1, 53 South 451, Ann. Cas. 1912B, 1209. Other courts, however, have taken a less comprehensive view of the question, holding that, notwithstanding the defendant may have been an accessory before the fact and under statutory provisions a principal, if he was not present at the actual time of the conversion of the goods, he may be held for receiving them after theft. People v. Feinberg, 237 Ill. 348, 353, 86 N.E. 584; People v. Thompson, 274 Ill. 214, 219, 113 N.E. 322; People v. Rivello, 39 A.D. 454, 57 N.Y.Supp. 420. The latter was the view of Wharton (Wharton on Cr. Law (9th Ed.) vol. 1, Sec. 986), and has been adopted by us. While under the rule early prevailing in England the receiver of stolen property from the thief, where there was present the intent to assist the thief in depriving the owner of the property, was an accessory to the larceny (State v. Sakowski, 191 Mo. 635, 90 S.W. 435, 4 Ann.Cas. 751; State v. Weston, 9 Conn. 527, 25 Am.Dec. 46; Ex parte Sullivan, 84 Neb. 493, 121 N.W. 456, 28 L.R.A. (N.S.) ...