BIGGS, Chief Judge.
The appellant, Kemble, was convicted on two counts of an indictment: first, for stealing on October 22, 1949, a case of whiskey in interstate transit and, second, for knowingly possessing a rifle which had been stolen from interstate commerce. The indictment was based on 18 U.S.C. § 659.
Kemble contends that motions for judgment of acquittal should have been granted because the United States produced insufficient evidence of felonious intent to warrant his conviction on either count. He asserts also that the court below in its charge removed from the jury the right to consider possible bias in accomplices who had testified against him. He argues that the court was wrong in its refusal to charge that circumstantial evidence does not warrant a conviction unless the circumstances "exclude beyond a reasonable doubt every other supposition except that of guilt"
The facts are as follows. In October 1949, Kemble was business agent for Local 676, Truck Drivers Union, A.F.L., in Camden, New Jersey. This employment, inter alia, required him to see that Schupper Motor Lines, whose home office is New York, employed only union drivers. Kemble was never in Schupper's employ and had not met Schupper until September 1949. Kemble did have title to a truck leased to Schupper, and in September he had performed a service for Schupper by finding a suitable terminal for his trucking concern at Pennsauken, New Jersey. By October Schupper was using this terminal. The terminal was managed by Cumberland, who had succeeded Crawford, Kemble's brother-in-law.
On Saturday, October 22, 1949, Cumberland was called to an accident which had occurred early on the morning of that day on Route 25 near Pennsauken and in which a truck was damaged. Cumberland asked Kemble to help at the scene of the accident because "* * * he had more understanding of these things * * *"
Early in December 1949, a shipment of some 40 rifles consigned to Sears, Roebuck & Co., Philadelphia, came to the Pennsauken terminal on a Schupper Lines truck. The shipper was J. L. Galef of New York. The rifles arrived without any accompanying papers
Kemble himself admitted that he had given the whiskey to Srymanske. He stated, however, that it was Kerr, rather than he, who actually delivered the case to the policeman. Kemble also admitted he had possessed a stolen rifle but asserted he did not know it was stolen. The rifle had been left at Kemble's house by Cumberland with Kemble's wife as a "Christmas present". Though Kemble's version disputes Cumberland's that the theft of the rifles had been discussed by Cumberland and himself prior to their actual stealing, Kemble did not deny that Schupper had informed him that rifles were missing or that he had attended the truck drivers' meeting to which we have referred. Moreover he admitted he did not report the theft
From the foregoing a jury might very well conclude that Kemble was guilty as charged. It is not disputed that Kemble gave Srymanske a case of whiskey in which he had no property right whatever or that the case was marked with the names of the consignor and consignee. We deem Kemble's admitted act to be sufficient to support
The evidence in the instant case discloses a man familiar with the transportation of goods in interstate commerce. The jury could have found that Kemble converted the case of whiskey, intending to steal it. Kemble asserts that he proved he intended no loss to the owner of the whiskey because he directed Kerr to send a note to Schupper that if he, Schupper, would not pay for the whiskey, he, Kemble, would. But the jury was at liberty not to credit this evidence. Had the jury believed it they would not have convicted Kemble for he would have been found lacking the mens rea necessary to complete the crime. We cannot say that the jury did not make a rational interpretation of the evidence before it.
We also encounter no difficulty in respect to the second count of the indictment, charging unlawful possession of the rifle. There is no doubt that Kemble possessed a rifle stolen in interstate commerce. Cumberland told Kemble that he would steal the rifles and Kemble expressed a desire to have one. This is sufficient to support a finding by the jury as to Kemble's actual prior criminal knowledge and connects him with the crime. Again, the issue was one of credibility for the jury.
Other assignments of error remain for discussion. One of these relates to the court's charge to the jury as to accomplices. Kemble contends that the court usurped the jury's function of passing upon the bias of witnesses by directing it to disregard any promise of leniency which might have been made by the United States to Ballantine and Cumberland. We set forth in the margin the portion of the charge complained of in this regard.
It is clear the jury was told that any question of possible bias on the part of the witnesses was for their consideration and determination. When viewed in this light the portion of the charge complained of is a
Kemble next contends that the charge of the court as to the probative value of circumstantial evidence was incorrect. In United States v. Dolasco, supra, 184 F.2d at page 748, we stated, "The rule with regard to this type of evidence is that for a conviction the evidence must exclude every reasonable hypothesis of innocence.
Finally, the appellant complains of the failure of the court below to charge as requested that "Criminal intent necessary to complete the crime charged must be proved by the prosecution beyond a reasonable doubt."
But another and more important issue remains for consideration, one which was not raised by Kemble on this appeal. In the court below Kemble took exception
This charge is inadequate in its definition of animus furandi, of a specific intent to steal. In United States v. Cohen, 3 Cir., 274 F. 596, 597, this court defined the statutory offense of stealing an interstate shipment to be the "unlawful taking and carrying away with intent to convert to the use of the taker and permanently deprive the owner."
The court's charge stated (1) Kemble had no right to take the whiskey and give it away and (2) that if he did so, he was guilty as charged. An intent to convert is mentioned but its meaning is not explained. No mention is made of intent to deprive the owner, and it cannot be assumed the jury would infer that such an intent was implicit in an intent to convert. Kemble's defense was that he thought he was entitled to give away the whiskey. This amounts to a combination of a claim of mistake and a claim of right, which if believed by the jury, would have been sufficient to negative the specific intent which sustains the offense of larceny. Cf. United States v. Trinder, D.C., 1 F.Supp. 659, cited with approval at 342 U.S. 266, 72 S.Ct. 240. There is no evidence that Kemble actually did see the tag on the whiskey case, and, if Kemble's testimony be believed, it was Kerr rather than Kemble who handed the whiskey over to Srymanske. The jury could have concluded that Kemble made a mistake and thought that he was authorized to dispose of the whiskey and to reimburse Schupper for it.
The analogy presented by the Morissette decision is apt here. Morissette like Kemble did intend to convert. Morissette openly took, crushed and transported the casings. Kemble was open about his taking and appropriation of the whiskey. We conclude that the jury should have been required to find that Kemble possessed a specific intent to steal the whiskey. Not to have so charged the jury was error.
But was the error committed of so fundamental a nature that we should exercise the power provided by Rule 52(b), F.R.Crim.Proc. 18 U.S.C., to notice error where counsel have not seen fit to raise the issue in this court? We are convinced that this question requires an affirmative answer. Exception was specifically taken in the court below, and this fact renders inapplicable our decision in United States v. Augustine, 3 Cir., 189 F.2d 587, 591. We think that the error below is "plain" within the meaning of the rule and that it affects "substantial rights". Indeed we can perceive nothing more substantial than the failure of the court to charge upon the subject which was Kemble's sole defense. He admitted he took the whiskey, and he did not deny that in fact he had no right to. The only defense open to him was absence of felonious intent, and this, as we have demonstrated, was not adequately revealed to the jury by the court.
Accordingly the judgment of conviction upon the first count will be reversed. The judgment of conviction on the second count will be affirmed.
KALODNER, Circuit Judge (concurring in part, dissenting in part).
I do not agree with the majority's view that the charge of the trial judge was inadequate. The trial judge read the complete text of the applicable statute to the jury as part of his instructions. The statute specifically provided that there must be an "intent to convert to his own use". The reading of the statute as part of his instructions, where the language of the statute is "clear and concise" is sufficient. Wheeler v. United States, D.C.Cir., 1951, 190 F.2d 663. The phrase "with intent to convert to his own use" is one which the average layman could be expected to understand. Moreover, at another point in his charge, in referring to the statute the trial judge defined the word "stealing" as used therein as follows:
In my opinion the jury was clearly instructed that in order to find the defendant guilty on count 1 it had to determine that
I do not think that Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 242, is apposite. In that case the statute did not require existence or proof of "intent". The Supreme Court held, nevertheless, that the intent must be proved. The second point involved in that case was that while the defendant testified that he had no intent to convert but thought that the articles were abandoned property, the trial judge specifically ruled as a matter of law that the defendant's state of mind and lack of intent "[was] no defense."
For the reasons stated I would affirm the judgment of conviction upon the first count. I concur with the majority that there should be an affirmance of conviction on the second count.
"Whoever embezzles, steals, or unlawfully takes, carries away, or conceals, or by fraud or deception obtains * * * from any station, station house, platform or depot * * * with intent to convert to his own use any goods or chattels moving as or which are a part of or which constitute an interstate * * * shipment of freight or express; or
"Whoever buys or receives or has in his possession any such goods or chattels, knowing the same to have been embezzled or stolen * * *
"Shall in each case be fined * * * if the amount or value of such * * * goods or chattels does not exceed $100 * * * not more than $1,000 or imprisoned not more than one year, or both."
"So, that, if you find Mr. Kemble took and converted to his use a case of whiskey in which he didn't have any property right or in which the person who did have the property right didn't give him permission to take it and carry it away, and if, after taking it and carrying it away, he converted it to his own use, and you are satisfied of those facts beyond a reasonable doubt, then, it is your duty to convict; if you are not satisfied of those facts beyond a reasonable doubt, under the rules that I have laid down, then, it is your duty to acquit. Now, on the other charge that he received this rifle knowing — he had in his possession this rifle knowing the same to have been stolen, and knowing that it was stolen from interstate commerce, if you find that the rifle was stolen from interstate commerce, that he received it, and at the time he received it, he had knowledge that it was stolen or had reason to reasonably believe that it had been stolen, and you believe that beyond a reasonable doubt, he is guilty, but if you don't find those things and don't believe them beyond a reasonable doubt, then he is entitled to be acquitted. Knowledge that would come after his receipt of possession would not make him guilty. He must have the knowledge that it was stolen prior to its receipt, and prior to its possession."