Before BIGGS, Chief Judge and McLAUGHLIN and O'CONNELL, Circuit Judges.
Nathan Gollin and Benjamin Richman at their second trial, as at their first, were convicted in the court below on an indictment of two counts charging each of them with violation of the Act of February 13, 1913, c. 50, Section 1, 37 Stat. 670, as amended by the Act of January 28, 1925, c. 102, 43 Stat. 793, as amended by the Act of January 21, 1933, c. 16, 47 Stat. 773.*fn1 The crimes of the defendants were committed either on the night of June 14 or early in the morning of June 15, 1946. It follows therefore that the amendment of July 24, 1946, c. 606, Section 1, 60 Stat. 656, was not in force at the time of the theft. The statute as amended, including the amendment last referred to, was embodied in Section 409 of Title 18 U.S.Code, 1946 ed. [now 18 U.S.C.A. §§ 659, 660, 2117]. The statute as it was prior to the amendment of July 24, 1946, was included in Section 409 of Title 18 U.S.Code, 1940 ed. These observations will be seen to be pertinent hereinafter. Cf. note 1 cited to the text in our prior opinion, 166 F.2d 123, at page 124. The first count of the indictment charged Gollin and Richman with stealing 600 cases of beer moving as and constituting freight in the course of shipment in interstate commerce. The second count charged wrongful possession of the stolen beer. Both defendants were found guilty on both counts and were sentenced to two years on each count, the terms to run concurrently. Both defendants have appealed.
The facts are substantially the same as were before the court in the first appeal.*fn2 We shall note some small discrepancies later. Briefly set forth the facts are as follows. P. Ballantine & Son ("Ballantine") owns and operates a brewery occupying 9 or 10 adjacent city blocks in Newark, New Jersey. The brewery is near the out-skirts of the city and Ballantine makes full use of the city streets adjoining the buildings for the parking and loading of trucks incidental to the operation of the plant and the shipping of its product in both intra-and interstate commerce. On the evening of June 14, 1946, a truck, No. 327, owned by Ballantine and licensed for interstate commerce by the Interstate Commerce Commission, was moved to a loading platform on Christie Street in front of one of Ballantine's plants and was loaded by Ballantine's employees with 600 cases of bottled beer. After the loading had been completed by the loaders, Borowsky, a loader, but qualified also as a driver, pulled the truck a few feet away from the loading platform. A checker, Baumgartner, then checked the load, and sealed the trailer doors*fn3 albeit they were not locked.
After the truck was sealed Borowsky procured the bill of lading, which had been previously filled in and signed by the warehouse foreman, Pearson, and signed it "* * * to release the truck from the platform". The shipment was consigned to Luberger, North Tarrytown, New York. Borowsky*fn4 then moved the truck approximately two blocks and parked it on the street opposite the company garage maintained by Ballantine, where it was to await the arrival of two previously assigned drivers. He removed the keys from the truck, placed them on a rack in the garage and inserted the bill of lading through the key ring. About two or three hours later the truck was discovered to be missing. It was located about 4 A.M. on Sherman Avenue in Newark, New Jersey. The seal had been broken and the beer removed.
Emer, the assistant delivery superintendent of Ballantine, testified that among his duties was that of scheduling drivers to drive the company owned trucks and trailers. He stated that he had prepared the assignment sheet*fn5 for company trailers for June 15, 1946 in quadruplicate and had posted it during the afternoon of June 14 between the hours of 12 noon and 4 P.M. He testified that the original sheet had been posted on the bulletin board at plant No. 1 near the time clock where the drivers "punch in" for starting work. A copy had been posted in the dispatch office, a second copy turned over to "a man named Coyne,"*fn6 and a third was kept by Emer for his records. Emer further testified that under the usual practice at Ballantine the drivers would have checked the assignment sheet each night to see the time they were to leave on the following morning and, on reporting in the morning to the dispatch office would first locate the truck assigned to them and would then go to the dispatch office and sign out for the truck. Emer stated that the truck keys might be at either the dispatch office or at the garage.
The defendants assert that certain highly persuasive "new facts" were brought into the record at the second trial, facts which were not introduced at the first hearing. A careful examination of the records of the first and second trials discloses the following new items of evidence. Borowsky was actually a loader and truck No. 327 was not loaded by him. Drivers of brewery trucks and trailers examined after four o'clock in the afternoon on the day preceding the day on which they were to take trucks out the assignment sheet or daily trailer schedule, designating them to trucks or trailers. See the summation of the testimony of Emer referred to previously in this opinion and note 5, supra. It was the practice for drivers to "sign out" at the company garage. There was introduced into evidence a sheet headed "Checker's Sheet No. 38,801" relating to truck No. 327. This contains the legend "Truck repairs needed" with a line left blank to indicate the necessary repairs. This line contains no notation.*fn7
The defendants contend that the gist of the offense defined by the statute makes it a crime for any person to steal from a truck goods "* * * moving as or which are part of or which constitute an interstate * * * shipment of freight * * *". They assert that Borowsky who first moved the loaded truck a few feet from the loading platform before it was sealed and later, after it had been sealed, parked it about two blocks from the loading platform on a public street, was a loader and not a driver and that therefore no interstate movement had commenced. They stress the fact that a driver would not start any journey, intrastate or interstate, until he had signed out and that if "* * * for any reason, he was not allowed to 'sign out' he would not obtain possession of the truck nor would the interstate journey begin." They lay much emphasis on the decision of the Supreme Court in Hughes Bros. Timber Co. v. Minnesota, 272 U.S. 469, 475-476, 47 S. Ct. 170, 172, 71 L. Ed. 359, wherein Mr. Chief Justice Taft stated, "The conclusion in cases like this must be determined from the various circumstances. Mere intention by the owner ultimately to send the logs out of the state does not put them in interstate commerce, nor does preparatory gathering for that purpose at a depot. It must appear that the movement for another state has actually begun and is goiong on. Solution is easy when the shipment has been delivered to a carrier for a destination in another state. It is much more difficult when the owner retains complete control of the transportation and can change his mind and divert the delivery from the intended interstate destination as in The Champlain Company case [Champlain Realty Co. v. City of Brattleboro, 260 U.S. 366, 43 S. Ct. 146, 67 L. Ed. 309, 25 A.L.R. 1195]. The character of the shipment in such a case depends upon all the evidential circumstances looking to what the owner has done in the preparation for the journey and in carrying it out. The mere power of the owner to divert the shipment already started does not take it out of interstate commerce if the other facts show that the journey has already begun in good faith and temporary interruption of the passage is reasonable and in furtherance of the intended transportation, as in the Champlain case."
The question presented for determination by the Supreme Court in the Hughes case was whether the State of Minnesota could tax personal property which was in actual transit in interstate commerce. The Supreme Court decided that the State of Minnesota could not do this. There is a clear suggestion in the opinion that when a shipment has been delivered to a carrier for destination in another State the goods are in interstate commerce though the Court points out that the question of goods are or are not in interstate commerce is much more difficult to decide when the "owner" retains complete control of the transportation as in the case at bar. In the instant case Ballantine would have retained control of the beer until its actual delivery to the consignee at North Tarrytown, New York.
But here the statute, as will be observed for example from an examination of the pertinent statute, defines the offense not only as the stealing of goods from a shipment actually in interstate transit but also as a stealing of goods "* * * which constitute an interstate * * * shipment * * *." In addition, stealing from a "railroad car", "truck", "station house", "platform", "terminal", and "wharf" are included within the ambit of the law. The last sentence of the statute expressly provides that the word "'truck' shall include any truck * * * of any person, firm, association or corporation having in * * * its custody therein or thereon*fn8 any freight, express, goods, chattels, shipments or baggage moving as or which are a part of or which constitute an interstate or foreign shipment." In distinguishing between goods actually moving in interstate commerce and goods which constitute an interstate shipment, the disjunctive "or" was employed by Congress, indicating, we think clearly, the congressional intent to create two classes of goods within the purview of the statute. It follows that the stealing of property which "constitute" an interstate shipment is as much an offense under the law as stealing goods actually in transit in interstate commerce. That Congress had the power under the Commerce Clause, art. 1, § 8, cl. 3, to include the category of goods first mentioned in the preceding sentence within the ambit of the statute is clear. Cf. United States v. Darby, 312 U.S. 100, 115-116, 61 S. Ct. 451, 85 L. Ed. 609, 132 A.L.R. 1430; Wickard v. Filburn, 317 U.S. 111, 120-124, 63 S. Ct. 82, 87 L. Ed. 122. The verb "constitute" is defined as "To set or station in a given situation, state or character" or "To fix or determine, as a trait or characteristic."*fn9 The test supplied by the statute therefore is whether or not the beer in the instant case had been constituted as an interstate shipment or whether it was moving in interstate commerce prior to the theft.
We think that in the instant case the beer constituted an interstate shipment. Its segregation as such a shipment by Ballantine had been completed. It had been sealed within the trailer and a bill of lading had been made out. The fact that Ballantine, the producer, was also the shipper, makes no substantial difference. The drivers had only to pick up the keys, the bill of lading and to sign out. Had the truck remained at the loading platform we would reach a similar conclusion. Indeed, the statute is intended to cover even the situation in which goods segregated for interstate commerce on a platform, at a terminal, or at a depot, have been stolen. The acts to be performed by the drivers in the instant case, viz., to pick up the keys and the bill of lading, to sign out and to drive the truck away, cannot be deemed to destroy the status of the shipment as interstate commerce. The segregation and constitution of the shipment for interstate commerce had been completed.
The defendants contend to the contrary. Relying on United States v. Yellow Cab Co., 332 U.S. 218, 231, 67 S. Ct. 1560, 1567, 91 L. Ed. 2010, they insist that the interstate journey of the beer must have been commenced in the most literal sense, i.e., by transportation of the beer on the road from point of shipment to point of consignment, in order for their acts to be cognizable under the statute. In the Yellow Cab case the Supreme Court, by Mr. Justice Murphy, concluded that although in a sense a traveler starts an interstate journey when he boards a conveyance near his home or office to travel to the railroad station from which the journey is continued by train, nonetheless "* * * interstate commerce is an intensely practical concept drawn from the normal and accepted course of business. Swift & Co. v. United States, 196 U.S. 375, 398, 25 S. Ct. 276, 280, 49 L. Ed. 518; North American Co. v. S.E.C., 327 U.S. 686, 705, 66 S. Ct. 785, 796, 90 L. Ed. 945. And interstate journeys are to be measured by 'the commonly accepted sense of the transportation concept.'" The defendants seem to take the position that the Yellow Cab case demonstrates that the concept of interstate transportation requires literal movement of the shipment on an interstate carrier. But it may be pointed out that in the same paragraph from which the preceding quotation is copied Mr. Justice Murphy also said that "* * * what may fairly be said to be the limits of an interstate shipment of goods and chattels may not necessarily be the commonly accepted limits of an individual's interstate journey. We must accordingly mark the beginning and end of a particular kind of interstate commerce by its own practical considerations." The Supreme Court was construing the Sherman Anti-Trust Act, 26 Stat. 209, as amended, 15 U.S.C.A. §§ 1-7, 15 note, and the concept of interstate commerce under that Act is of course somewhat different in scope from that of the statute at bar. It may be concluded fairly from the words of Mr. Justice Murphy that the concept of interstate commerce in goods is wider than that of the interstate journey of the individual traveler, and that considerations of a very practical nature must determine in each case arising under each statute whether goods or persons are in the stream of interstate commerce.
Assuming arguendo that the contention of the defendants that there must be an actual commencement of movement in interstate commerce is correct, nonetheless we are of the opinion that there is ample testimony in the record of the second trial (as there was in the record of the first) to support the conclusion that a transfer or movement in interstate commerce had actually been begun before the theft took place. The beer had in fact been moved from the loading platform and placed in the truck. The truck itself had been moved, after its contents had been sealed and the bill of lading had been made out, to a point on a public street about two blocks from the loading platform; that is to say, the truck and its contents had commenced the movement which had been designed ultimately to take them to North Tarrytown. The fact that the truck had been driven two blocks from the platform by a loader, Borowsky, rather than by the drivers designated in the schedule to take the shipment to North Tarrytown, seems immaterial. Under the circumstances we think the jury was justified in concluding, as it apparently did, that interstate movement had actually commenced. While the truck had been halted before the theft took place, the halt was temporary and was to endure only until the previously assigned drivers arrived to continue the movement. Moreover, Emer testified that trailer No. 327 had been assigned for an interstate journey to New York prior to its loading, and its status as an interstate carrier became fixed when the beer was loaded and the trailer sealed. The contents of the truck were therefore clearly within the purview of the statute.
In view of all of the foregoing we reach the conclusion that the court below did not err in denying the defendants' motions for directed verdicts of acquittals. The court below left these issues of fact to the determination of the jury under what we conclude, for the ...