Wolf v. United States

• Decision Date: 28 May 1923
• Docket Number: 285.
• Parties: WOLF v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

290 F. 738

WOLF v. UNITED STATES.

No. 285.

United States Court of Appeals, Second Circuit.

May 28, 1923

John B Johnston and Elijah N. Zoline, both of New York City, for plaintiff in error.

William Hayward, U.S. Atty., of New York City (William J. Millard Asst. U.S. atty., of New York City, of counsel), for the United States.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

ROGERS Circuit Judge.

The plaintiff in error, hereinafter called the defendant, was tried and convicted under an indictment which charged that he unlawfully, willfully, and knowingly had in his possession with intent to convert to his own use, 150 bolts of woolens which were stolen while moving in interstate commerce, the goods being taken from a freight house of the New York Central Railroad in New York, knowing the same to have been stolen. The indictment was under the Act of February 13, 1913 (37 Stat. 670 (Comp. St. Secs. 8603, 8604)). The part of the statute applicable to the case is found in the margin. ^[1] The defendant has been sentenced to imprisonment for five years

The goods in question were shipped from a place in Massachusetts to New York City, and although they had arrived in New York they were never delivered to the consignee. While they were still in the possession of the carrier they were stolen. The car in which the goods were transported arrived in New York on July 1, 1920, with its seals on both sides unbroken. Notice of the arrival of the goods was sent to the consignees and received by them on July 2 or 3, and on July 6 they sent their truckman to the freight depot to get the goods and to pay the freight bill. He paid the bill to the cashier and received a duplicate receipt, marked 'Paid.' The original freight bill and cashier's slip had disappeared from the files of the office and the duplicate was therefore given to the truckman. The original freight bill, marked 'Paid,' had been stolen, and had been presented to the delivery clerk at the freight station three days before the demand by the truckman of the consignees was made, and upon presentation of the stolen original freight bill, marked 'Paid,' the goods had been delivered to a man using the name 'A. Jones.' The goods consisted of 10 cases of Melton cloth. The market value of the goods at the time of shipment was $1.25 per yard, and their value was $12,500, and the evidence disclosed that on July 9, 1920, which was six days after the consignees had notice of the arrival of the goods in New York, the firm of Moe Smith & Co. in New York City had purchased the 150 bolts of Melton cloth of the defendant for 47 1/2 cents a yard, although the fair market value of the cloth was at the time much in excess of the sum paid. This appears from the fact that three days after Moe Smith & Co. purchased the goods for 47 1/2 cents a yard they sold the whole amount for 67 1/2 cents a yard.

The defendant was arrested on July 25, 1920. He stated at the time of his arrest that he knew nothing about the 10 cases of stolen cloth and that he did not know Moe Smith. The defendant was driving his automobile, which he said was his own car. The detectives found in a locked box in the rear of the front seat of this car a piece of cloth with the distinctive mark on it which the shippers of the stolen cloth put on the cloth which had been shipped to the consignees and which had been stolen. The detectives found in the same box tags which it was claimed were on the bolts of cloth when they were shipped from Massachusetts. After finding these things in the box, one of the detectives showed them to Wolf and said:

'I thought you didn't know anything about these woolens; you declared you didn't sell them to Smith, or you don't know Smith.'

The defendant replied that:

'He wouldn't have anything to do with the affair except that he wished we (the detectives) would release Louis Friedman (who was being held by the detectives and was with Wolf when he was arrested) as Friedman had nothing to do with it.'

When the detectives asked Wolf for his keys to the box in the car, he told them he did not have any. Thereupon the detectives opened the box with a screwdriver, and on opening it found the tags and the cloth above mentioned. Upon their arrival at the police station with Wolf they searched his person and found on him a ring with several keys on it, one of which fitted the lock on the box. At police headquarters Moe Smith recognized the defendant as the man from whom he had bought the 150 bolts of Melton cloth, and the defendant then admitted, notwithstanding his previous denials, that he had known Smith for quite some time; and when Smith's books were shown to the defendant, disclosing the sale of the cloth by the defendant to Smith, the defendant said he had nothing to say. The following is an excerpt from the testimony of one of the officers as to what took place at the police station after the arrival there of Wolf:

'I said to Smith, 'Mr. Smith, do you know Mr. Wolf?' He said, 'I certainly do.' I said, 'How long do you know him?' 'Oh, quite some time; don't I, Wolf?' Wolf said, 'Yes.' Wolf says, 'Can I talk to him a minute?' I said, 'Sure; go ahead and talk to him.' I said, 'I will talk to him first, though.' Have you got the books here with this sale and the purchase, the purchase of these goods and the sale of the goods? The goods Wolf sold you-- the goods to Edelson & Hand?' He said, 'Yes.' He threw open the books. I said, 'This is the record?' He said, 'Yes; that is the record.' I said, 'Mr. Wolf, is this your bill?' He said, 'I haven't got anything to say.' I said to Moe Smith, 'This is the man that sold you the goods, isn't it?' He said, 'Yes; that's the man that sold me the goods.' I said, 'Did he ever sell you any goods before?' He said, 'He offered other goods before that; I don't think we ever bought any other goods before that; I don't think we ever bought any goods from him before this.' I said, 'Well, Wolf, what do you think of that,' I said, 'You know him all right?' He said, 'Oh, yes; I know him all right; I am going to hit him up for a borrow.' Smith said, 'Then you must know me pretty good, if you can ask me for coin and get it.' So he stepped over alongside of Moe Smith, and there was something exchanged hands between them. I couldn't say whether it was money, or paper, or what it was; but they did have a few minutes conversation, and Wolf walked over to the bench again and sat down. Smith said, 'Well, you are through with me; can I take my books?' I said, 'No, sir; you get the books to-morrow."

The defendant was called as a witness in his own behalf. He admitted selling the goods to Moe Smith for 47 1/2 cents per yard, but asserted that he had purchased them from a man by the name of Hoffman, whom he claimed to have known for three or four months. He testified that he never knew that the cloth had been stolen; that he had never denied knowing Smith; that he had never seen the tags which the detectives claimed to have found in his automobile, and he intimated that they had been planted in the automobile by one of the detectives, with whom he had had some dealings and who entertained a grudge against him. Hoffman was not produced as a witness. The defendant testified that after he was arrested he tried to locate him, but was unable to find him. He testified:

'The morning after I was bailed, I tried to locate Hoffman. I was bailed at night. The next morning at 9 o'clock I went to the building at 32 Union Square to look for Hoffman. I found that the office was locked, so I went to the superintendent. That was the man who was on the stand. I asked him, ' Where is Hoffman?' He said, 'We threw him out; he didn't pay his rent, so we got the marshal to dispossess him and throw him out.' I told him at the time that this man Hoffman had got me into trouble on account of some goods I bought from him, and I wanted to locate him, because I was to appear before the commissioner for a hearing the next day. I was not able to locate Hoffman after that.' There was evidence from other witnesses showing that there was such a man as Hoffman, and the superintendent of the building at 32 Union Square corroborated the defendant's testimony that the defendant came there to locate Hoffman some time in July, but that the latter had been put out some two or three weeks before, because he did not pay his rent, and that he never returned to the building and never claimed his goods, and that they were put out on the street and left there. There was also testimony showing that Hoffman had offered to sell to Levi Goldstein 150 pieces of Melton cloth by sample. On the defendant's cross-examination the following occurred:

'Q. Did you ever have stolen goods in your possession before? (Objected to, which objection was overruled, to which ruling of the court the defendant by his counsel then and there duly excepted.) A. No, sir.

'Q. Did you ever have any stolen goods in your possession since you were arrested? (Objected to, which objection was overruled, to which ruling of the court the defendant by his counsel then and there duly excepted.) A. I have never had any stolen goods in my possession since my arrest to my knowledge.

'By Mr. Cotter: Isn't it a fact that on April 24th of this year, right in this city, you were found in possession of $60,000 of stolen registered bonds? A. Not to my knowledge.

'Q. Were you found in possession of any of them? Any part of the $60,000? (Objected to, which objection was overruled, to which ruling of the court the defendant by his counsel then and there duly excepted.)

'Q. Any part of the $60,000? A. I was found with some bonds, but I didn't know that they were stolen.

'Q. Did you have a conversation with Inspector Doran regarding your knowledge of those

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