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UNITED STATES v. KESSLER

August 17, 1945

UNITED STATES
v.
KESSLER



The opinion of the court was delivered by: KIRKPATRICK

The defendant was convicted upon an indictment charging him with stealing from a truck two cases of cigars constituting an interstate shipment, and he now moves for a new trial on the ground that the evidence was insufficient to support a conviction and that the Court should have directed a verdict of not guilty. No complaint is made of the charge or of any ruling upon any question of evidence.

The government's case depended entirely upon circumstantial evidence.

 The testimony was not taken stenographically and I must make up a summary of the evidence as best I can from sources at my command, which consist of my trial notes and my memory assisted by the statements of counsel in their briefs as to their respective recollections of what the witnesses said.

 Certain facts are undisputed, or at least the defendant does not deny that there was uncontradicted evidence from which they could be found by the jury. These facts will be stated without special reference to the testimony of the witnesses by whom they were proved, as follows:

 The defendant came to Philadelphia from New York City on October 12, 1944. He went first to the Local of the Teamsters' Union which had previously certified him for one day's employment with another trucking concern in Philadelphia, and was sent by the Local to the offices of the Union Transfer Co., 1000 S. Broad Street, where he procured employment, giving a fictitious name and address and making false statements as to his dependency status and previous military service. He had an explanation for these falsehoods, which the jury may or may not have accepted. He was taken on as a truck driver, was assigned to truck No. 28, and given instructions to pick up various cargoes at nine addresses, arranged in a certain order for convenience and expedition on a so-called pick-up route, after which he was to call the Union Transfer Co. by telephone for additional assignments. He set out with the truck about noon. At some point during his trip, he was joined by an unidentified man who assisted him in loading the truck at some of the stops along the route.

 Having completed the nine calls assigned to him, he telephoned to the Union Transfer office and was given a list of five additional calls, the second of which was the Bayuk Cigar Co. at Ninth Street and Columbia Avenue. The defendant, skipping the first of the five stops on his list, went directly to the Bayuk Co. where he received a shipment consisting of packages of cigars, for which he signed a number of bills of lading, two of which were for shipments, of one package each, for customers in Camden, New Jersey. The unidentified man assisted one of the Bayuk employees in loading the cigars on the truck. The defendant left the Bayuk Company with the truck at 3:35.

 At 4:15 an employee at a repair garage maintained by the Union Transfer Co., at 24th and Wharton Streets, observed the truck (a covered one with a gate or screen at the back, which had no lock upon it) standing in the street about half a block away, without any driver or other occupant. The truck was not damaged in any way and had about 'half a load' of freight upon it. A helper was sent to bring it in to the repair garage, during which operation the truck was continuously under observation of at least one of the employees at the garage. No one was seen to remove anything from it. From the garage it was driven to the Broad Street address of the Union Transfer Co. by a driver who had been sent down to get it.

 Upon two points there is a dispute, not as to the testimony, but as to the inferences which can be drawn from it. The points and the testimony are as follows:

 1. Were the two Camden cases loaded upon the truck? Groseo, assistant shipper in the Bayuk wholesale department, testified that the defendant and the unidentified man appeared with the truck about 3 o'clock and asked for the shipment. He took them to the retail department where Mr. Geipel was in charge. The defendant was sweating and nervous.

 There was no direct testimony that the defendant actually saw the shipment on the platform or being loaded on the truck or that he could have seen the platform from Mr. Geipel's office. Neither of the two Bayuk employees who testified checked all the individual packages and neither could testify specifically that he saw the two packages for Camden put on the truck.

 2. Had the two Camden cases been removed from the truck before it was found? Davis, a mechanic at the Union Transfer repair garage at 24th and Wharton Streets, was the witness who first saw the abandoned truck. He testified that when it was brought in he looked in the back of it and all he saw there was a couple of barrels and old boxes, but that he could not say whether or not there were any cigars in front of the barrels. He did not see any. Dunn, an employee of Scott Bros., Inc., engaged in repairing Union Transfer Co. trucks, also saw the truck in the street. It was brought to the repair garage by a helper who was not called as a witness. Dunn testified, 'I could see everything that was in the truck. There were no cigar cartons in it.' On cross-examination he qualified this statement to some extent, although he did not expressly retract it. His entire testimony was somewhat contradictory and unclear.

 From the repair garage the truck was driven to the Union Transfer's place of business at 1000 S. Broad Street by a driver who testified that, when he started, the truck was sealed.

 Cleaver, chief dispatcher at the Union Transfer Co.'s place of business was present when the truck was finally brought there and testified that he examined the contents and found no cigars. On cross-examination he said that he did not open any containers on the truck and agreed that, consequently, it was possible that some of them might have contained cigars, although he stated that the ...


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