testimony, did not deny that a shipment consisting of a number of cases was loaded upon his truck nor did he contradict the testimony of either of the Bayuk employees as to the circumstances. One of the Bayuk shippers testified that the shipment, which had been waiting for two days for the Union Transfer truck to come for it, consisted of more than 30 cases. Two of the cases came from the wholesale department and were checked as loaded by the shipper from that department. The rest, including the two Camden packages, were counted as the 'went out' by the shipper in the retail department, after which the defendant signed 'the bills of lading.' Inasmuch as the shipper who counted them did not see the cigars loaded it is obvious that by 'went out' he meant, taken from his department to the platform. From the platform 'the cigars' were loaded on the truck by a Bayuk employee assisted by the defendant's anonymous companion, under the eyes of the wholesale shipper.
The entire transaction was part of one of countless minor business operations of a large manufacturing concern. It was carried out by employees to whom such ordinary routine matters were regularly committed and in the absence of any testimony as to anything out of the ordinary it may be inferred that it was regularly completed. Evans v. Commercial Trust Co., 76 Pa.Super. 304, 310: 'It might be as well to say here what we have said before, that the commercial business of the world has long ago outgrown the conditions upon which many of what were once considered basic rules of evidence were founded. If it were now regarded as necessary to have the direct and positive evidence of some witness who of his own knowledge could trace the records accompanying the sale of a small quantity of merchandise from seller to buyer, or from shipper to consignee, it would be impossible for a railroad company to recover its freight, a bank to recover because of an advancement upon a foreign check, a department store to obtain the price of a book it had sold, nor could any such transactions be successfully carried on.' See also Loughran v. Thomas Bros. Co., 65 Pa.Super. 302.
In the present case, the delivery of the shipment was under the direction of the two shipping clerks. One of them counted the cases as they went out and bills of lading were given to the defendant to sign, and although the exact number of bills of lading so signed does not appear, there is no reason to question that the proper number of cases were taken out and that bills of lading to correspond were signed. The same considerations apply to the loading. It is, of course, within the realm of remote possibility that in some way these two cases failed to be loaded upon the truck but the testimony that the loading was done by a Bayuk employee and watched by the other shipping clerk made it proper to submit the whole question of delivery and receipt to the jury, which the Court did under instructions.
The bills of lading were properly in evidence, not because the defendant's signing them constituted an admission on his part of the receipt of the goods, but because they were made as a memorandum or record of a transaction in the regular course of business. 28 U.S.C.A. § 695. As such they would have been clearly admissible had the defendant not been required to sign them at all, and it is, therefore, immaterial that the defendant may not have actually seen the boxes loaded or may not have read the bills of lading themselves or known of their contents. In view of all the evidence, I do not think it was necessary for the government to produce a witness who actually checked the two Camden packages as they were loaded on the truck.
2. As to the fact that the cigars were missing from the truck when it was discovered near 24th and Wharton Streets, the testimony of Dunn, taken in connection with that of the other witnesses, particularly Mr. Cleaver, who examined the truck when it was brought back, is sufficient to support a finding upon this point. Although, as pointed out, Dunn's testimony contained contradictions and was not entirely satisfactory, I think, and still think, it was properly submitted to the jury for them to determine the net result of it. It was not a question of credibility but of what he meant. They were carefully instructed that it was for them to say whether he intended to testify that when he looked into the truck he could see its entire contents. If he could, his testimony, that there were no packages of cigars in it, was competent to establish that point.
The jury's verdict, then, may be taken as establishing the facts that the defendant left 9th Street and Columbia Avenue with a shipment of more than 30 cases of cigars, including two cases for Camden, and that 40 minutes later the truck was found abandoned at 24th and Wharton Streets without the defendant and without cigars. From 9th Street and Columbia Avenue to 24th and Wharton Streets it is about four and three-quarter miles, most of the way through down-town traffic. For a truck to cover the route at 4 o'clock in the afternoon of a business day would require at least 20 minutes. The question whether the evidence is as consistent with the defendant's innocence as it is with his guilt or, to put it another way, whether the evidence excludes every reasonable hypothesis except the defendant's guilt, must be considered within the frame supplied by his explanation as to what occurred. He testified that he left the truck standing at 1800 N. Broad Street. The distance from there to 24th an Wharton Streets is perhaps four and one-quarter miles. Referring to the defendant's counsel's brief, the statement is made that from the time the defendant left the truck until it was repossessed 25 minutes elapsed. Into these limitations of time and distance it is impossible to fit any reasonable hypothesis consistent with the defendant's innocence. Either he took the cigars or was an indispensable participant in the theft. According to his testimony no one could possibly have known where the truck was or that he was going to leave it, until the moment he telephoned to the office from 1800 N. Broad Street. Obviously, the removal of some 30 cases of cigars required either another vehicle into which they could be loaded or some place where they could be cached. I should hesitate to try to estimate mathematically the probability that some marauder, supplied with the means of removing or hiding the cigars, would have happened along at exactly the moment the defendant left the truck. It was necessary that he do just that, in order to get the truck to the point where it was found at the time it was found.
Even the idea of an 'inside job,' apart from the fact that there is no evidence to sustain or even suggest it, is equally improbable. On the defendant's testimony, no Union Transfer Co. employee had any knowledge that the defendant would abandon the truck until he telephoned. The office of the Company is two and one-half miles from 1800 N. Broad Street. Again, it must be assumed that mobile equipment or a hiding place was in readiness and some confederate waiting somewhere in the neighborhood to receive news of an opportunity which no one had the slightest reason to anticipate.
The motion for a new trial is denied.
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