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United States v. O'Brien

May 3, 1949

UNITED STATES
v.
O'BRIEN ET AL.



Author: Minton

Before MINTON and DUFFY, Circuit Judges, and LINDLEY, District Judge.

MINTON, Circuit Judge.

The defendants were indicted and convicted on a count which charged them with the possession of 27 cases of butter which had been stolen from an interstate shipment, knowing the same to have been stolen. The statute concerned is 18 U.S.C. § 409 [now § 659], the pertinent parts of which read as follows:

"(a) Whoever shall - * * *

"(2) embezzle, steal, or unlawfully take, carry away, or conceal, or by fraud or deception obtain from any -

"(i) railroad car, motortruck, wagon, or other vehicle,

"(ii) station house, platform, depot, or terminal,

"(iii) steamboat, vessel, or wharf,

"(iv) aircraft, airport, aircraft terminal or air navigation facility,

"any goods or property moving as or which are a part of or which constitute an interstate or foreign shipment of freight or express, with intent to convert such goods or property to his own use, or shall buy, receive, or have in his possession any such goods or property, knowing the same to have been embezzled or stolen; * * *."

In the court below a motion to suppress the evidence was heard and overruled, and separate motions for acquittal were filed at the conclusion of all the evidence and overruled. These are assigned and discussed as error duly presented below. The defendants present here for the first time their contention that the count upon which they were convicted was defective.

We shall first discuss the sufficiency of the evidence to support the verdict and judgment, which is presented by the motions for acquittal. In answering that question, we consider only the evidence favorable to the verdict and such reasonable inferences as the jury may have drawn therefrom. Butler v. United States, 7 Cir., 138 F.2d 977; United States v. Monarch Distributing Co., 7 Cir., 116 F.2d 11.

The following facts are supported by substantial evidence in the record. On November 17, 1947, in the city of Chicago, Illinois, Police Officer Harrington was on his beat at 3 A.M. in the vicinity of the intersection of Emerald Street and Root Street. Emerald Street runs north and south, and Root Street runs east and west between 41st and 42d streets. On the northeast corner of Emerald and Root was a lot on which Safeway Truck Lines parked its truck trailers. An office of Safeway adjoined the parking lot.At the time in question, four truck trailers of Safeway were on this lot. The lot was well lighted. As Officer Harrington was going to a call box on the corner of Root and Halsted streets, a block west of Emerald Street, to make his routine call to headquarters, he heard a truck on Safeway's lot. The throttle of the truck was full and the engine made an unusual noise and attracted his attention. He looked in the direction of the lot and saw a red truck without lights leaving the lot in the vicinity of the trailers. The back of the truck had folding gates.

The officer went on and pulled his box at Root and Halsted streets. He then walked east on the north side of Root Street and as he came to the alley between Halsted and Emerald streets, he saw a truck, similar to the one he had seen leaving the Safeway lot, driving south on Emerald at about forty miles an hour. He returned to the Safeway lot and examined the trailers. One was not molested. The other three were broken open, and the locks and seals were lying close to the opened trailers. One seal put in evidence bore a number and was indentified as put on the Safeway truck trailer that had left Mason City, Iowa, for Boston, Massachusetts, loaded with butter. It was a railroad seal used by the creamery that shipped the butter to seal the trailer and bore the markings "M.C. and C.L.R.R. Co.," which were the ...


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