Before DUFFY, FINNEGAN and SWAIM, Circuit Judges.
These are appeals from a judgment of the District Court which found both of the defendants, John Williams and Nick Rogulich, guilty of receiving and possessing property stolen from interstate shipments in violation of 18 U.S.C.A. § 659. Each of the defendants was sentenced to serve two years in the penitentiary on each of the two counts of the indictment, the sentences to run concurrently.
The first count of the indictment charged these defendants with possessing property which they knew was stolen and the second charged them, together with Charles S. Kraw and Michael J. Diorio, with receiving the stolen property. Kraw was granted a severance and tried later. The Government dismissed the charge against Diorio. The property involved was described in the indictment as being: "1 Carrier Automatic Ice Cube Maker, Serial No. 01009 and Storage Bin," which were stolen from the platform or dock of the Dakota Transfer and Storage Company in Chicago, Illinois.
There was sufficient evidence to support the finding of the following facts: On Friday, January 13, 1950, goods, including the ice cube maker and storage bin, shipped by the Carrier Corporation from New York, New York, to Rapid City, South Dakota, were unloaded for transfer on the Dakota Transfer and Storage Company's freight dock at 25th and Southwest Streets in Chicago, Illinois. The Dakota Transfer Company and the Indiana Motor Express Company occupied and used the same warehouse building and dock. The dock was separated only by a partition for the use of the two companies. On the night of Saturday, January 14, 1950, at about 11:00 p.m., two unknown, masked men seized and blindfolded the night watchman who was on duty guarding the building and docks of these two transfer companies. After the watchman was so bound and blindfolded he was left in a washroom of the building. He could not see what the men did nor identify them. He remained so bound and blindfolded for about two hours. The next morning, January 15th, the Indiana Motor Express Company discovered that some radio and television sets and television tubes had been taken from its dock and that someone had also stolen its pick-up truck, which was abandoned in a private driveway at 8035 South Central Avenue in Oak Lawn, Illinois, about 2:00 or 2:30 a.m. the same night. On Monday morning, January 16th, an inventory taken by the Dakota Transfer Company of the goods on its docks revealed the fact that the ice cube maker and storage bin had also been stolen.
On Friday, January 13, 1950, the defendant Williams went to the home of James Cashman at 7725 South Newcastle in Oak Lawn, Illinois, and rented the garage attached to Cashman's house, saying that he had some "stuff" he wanted to store there for a while.Cashman's house was located two miles distant from 8035 South Central Avenue where the Indiana Motor Express Company's pick-up truck was abandoned. The next night, Saturday, the 14th "around midnight," the same night the goods were stolen, Williams, accompanied by Rogulich and two or three other men, returned to Cashman's home and unloaded about fifty boxes and cartons into the Cashman garage from a truck. Cashman helped them with the unloading and remembered seeing something in one box that looked like glass or a bowl, but he was unable to identify it positively - he said it could have been a lamp or a television tube or anything. During the ensuing weeks Williams and Rogulich visited the garage several times, each time removing some of the boxes. No other boxes or cartons were brought to the garage. Most, if not all, of their visits to the garage were made after dark. The last time the defendants came was on February 7, 1950, when it was just turning dark. At that time the defendants were accompanied by Diorio and Kraw who took away the last of the boxes in a trailer attached to their automobile.
Cashman had known Williams and Rogulich for two or three years before Williams rented the garage. He knew that Williams was in the slot machine business and said that the boxes and cartons stored in the garage were of such a size that they might have contained slot machines.
The principal witness for the Government was Michael J. Diorio, a confessed accomplice of the defendants. He was to have been tried separately from these two defendants and from Charles S. Kraw but, after the conviction of Kraw, Williams and Rogulich, the Government dismissed the case against Diorio.
During January and February 1950, Diorio, with his partner, Charles S. Kraw, owned and operated the Miami Lounge, a tavern located at 2822 West 55th Street in Chicago. During this time they arranged with Williams to buy the ice cube maker and storage bin, paying $400 for it. The retail price of this new machine was more than twice that amount. After the arrangements for the purchase had been made, Kraw, on February 7th, rented a trailer and, with Diorio and the two defendants, went to Cashman's house and picked up the last of the boxes from the rented garage. The stolen ice cube maker and storage bin were in these boxes. The ice cube maker and storage bin were taken from Cashman's garage to the Miami Lounge. Later, on February 22nd, the ice cube machine was hooked up for operation in the kitchen of the Miami Lounge. Diorio paid part of the purchase price to Williams in two checks on the funds of the Miami Lounge. One check was made out to "Cash" and the other was made out by Diorio to himself and then endorsed. This was done at the suggestion of Williams. The endorsement of Williams did not appear on either of these checks.
Evidence in this case and in the later Kraw case disclosed how the stolen ice cube maker was discovered. U.S. v. Kraw, 7 Cir., 194 F.2d 78. In May 1950, Kraw called in a repair man to work on the beer cooler in the kitchen of the Miami Lounge. This man noticed that the ice cube maker situated next to the cooler was not working properly and he suggested that he could get a man from the Carrier Corporation to repair it. Kraw asked him to do so. The Carrier repairman reported the number of the machine to the Carrier Corporation which, in turn, reported it to the Dakota Transfer Company from whose dock it had been taken. The President of the Dakota Transfer Company visited Kraw in June and told him that the machine had been stolen and that the Dakota Company had paid the Carrier Corporation $519.13 for the loss. Kraw was permitted to keep the machine on his payment of this amount to the Dakota Transfer Company. By this time Diorio had sold his interest in the Miami Lounge to Kraw's former wife.
Diorio's testimony was conflicting on some points. He said that there was no gambling in the Miami Lounge, but later he admitted that there had been gambling there and that he had bought at least one slot machine from Williams. Williams testified in his own defense. He said that he was in the business of selling slot machines and that the boxes and cartons stored in the garage contained these machines.
The defendants in their brief admit that there was sufficient evidence to sustain a finding that the ice cube maker was stolen from an interstate shipment but they insist that there was not sufficient evidence to show that they, with knowledge that it was stolen, were either in possession of or received the stolen property. The defendants also insist that the trial court erred in admitting evidence of the theft of other property from the Indiana Motor Express Company. And they contend that the testimony of Diorio, an admitted accomplice, "should have been subjected to close scrutiny, minute examination, and weighed with great caution."
First, as to the conviction of the defendants upon the uncorroborated testimony of Diorio the accomplice. The defendants "do not question the general rule of law that a defendant may be convicted upon the uncorroborated testimony of an admitted accomplice," but they insist that Diorio's testimony here should have been scrutinized closely and weighed with great caution, and that this testimony was doubly suspect because of the subsequent dismissal of the charges against Diorio.
The scrutiny of evidence, the weighing of testimony and the determination as to the credibility of witnesses are, of course, peculiarly the function of the trier of the facts, here the trial judge. In this case the fact that Diorio was an accomplice was brought out in the trial court. The trial judge saw him and listened to him testify. We find nothing to indicate that the trial judge did not carefully scrutinize and weigh his testimony. The trial judge was necessarily aware of certain inconsistencies in Diorio's testimony and yet he chose to believe the essential parts of Diorio's testimony rather than to believe the defendant Williams and some of ...