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United States v. Kemble.

decided.: May 27, 1952.


Author: Biggs

Before BIGGS, Chief Judge, KALODNER, Circuit Judge, and STEWART, District Judge.

BIGGS, Chief Judge.

The appellant, Kemble, was convicted on two counts of an indictment: first, for stealing on October 22, 1949, a case of whiskey in interstate transit and, second, for knowingly possessing a rifle which had been stolen from interstate commerce. The indictment was based on 18 U.S.C. ยง 659.*fn1

Kemble contends that motions for judgment of acquittal should have been granted because the United States produced insufficient evidence of felonious intent to warrant his conviction on either count. He asserts also that the court below in its charge removed from the jury the right to consider possible bias in accomplices who had testified against him. He argues that the court was wrong in its refusal to charge that circumstantial evidence does not warrant a conviction unless the circumstances "exclude beyond a reasonable doubt every other supposition except that of guilt",*fn2 and finally he contends that the court below erred in refusing to charge that "Criminal intent necessary to complete the crime must be proved by the prosecution beyond a reasonable doubt."*fn3 Kemble does not contend, however, that the court below erred in its charge with respect to the requisite criminal intent to constitute the offense of theft of goods in interstate commerce. We make this statement for reasons which will appear hereinafter. The record contains ample evidence to support the jury's conclusion that Kemble both intended to steal the whiskey and that he knew that the rifle, which he admittedly possessed, was stolen.

The facts are as follows. In October 1949, Kemble was business agent for Local 676, Truck Drivers Union, A.F.L., in Camden, New Jersey. This employment, inter alia, required him to see that Schupper Motor Lines, whose home office is New York, employed only union drivers. Kemble was never in Schupper's employ and had not met Schupper until September 1949. Kemble did have title to a truck leased to Schupper, and in September he had performed a service for Schupper by finding a suitable terminal for his trucking concern at Pennsauken, New Jersey. By October Schupper was using this terminal. The terminal was managed by Cumberland, who had succeeded Crawford, Kemble's brother-in-law.*fn4 These circumstances show that there was a business relationship between Kemble and Schupper, a status pertinent to Kemble's defense as will hereinafter appear.

On Saturday, October 22, 1949, Cumberland was called to an accident which had occurred early on the morning of that day on Route 25 near Pennsauken and in which a truck was damaged. Cumberland asked Kemble to help at the scene of the accident because "* * * he had more understanding of these things * * *"*fn5 and Kemble did so.At the scene of the accident Srymanske of the Pennsauken Township Police stated in a joking manner that it was too bad the truck did not contain whiskey. Kemble replied he would see what could be done about a drink upon their return to the terminal. At the terminal Kemble asked Cumberland and the office boy, Kerr, whether they had any whiskey. Cumberland stated that in his presence Kemble took from the platform of the terminal and gave to Srymanske a case of T. J. Mooney Whiskey. The carton in which this whiskey had been carried was produced in the court below and the label on it shows that it was shipped by the Montebello Liquor Company, Baltimore, to the Pennsylvania State Liquor Store, West Girard Avenue, in Philadelphia, respectively the consignor and the consignee. Kemble directed Kerr to send a note to Schupper to inform his of the gift to Srymanske of the whiskey and to state that if Schupper would not pay for it he, Kemble, would.

Early in December 1949, a shipment of some 40 rifles consigned to Sears, Roebuck & Co., Philadelphia, came to the Pennsauken terminal on a Schupper Lines truck. The shipper was J. L. Galef of New York. The rifles arrived without any accompanying papers*fn6 and Cumberland testified that he saw an opportunity for the theft of the rifles and that he did steal them.*fn7 Cumberland stated that between six and seven o'clock of the night*fn8 before he stole them he spoke to Kemble about the chance to steal rifles and that the latter said, "Well, if you can get away with it, go ahead and take them.", and that Kemble indicated his desire to have one of the rifles.Ballantine, a terminal employee, testified that he had helped unload the rifles at the terminal between 9:00 and 10:00 A.M. on a December morning*fn9 and that Cumberland took the rifles at this time. Ballantine stated that Cumberland put the rifles in his own truck and "pulled the truck around to the side of the terminal." Ballantine said it was Kemble who later informed him Ballantine, that there would be trouble about the rifles and that he should return to Cumberland not only the rifle which subsequently had been given to him by Cumberland,*fn10 but also that he should pick up another rifle which would be found at Kemble's home. Ballantine testified that he did as Kemble suggested. In addition Ballantine corroborated evidence given by Cumberland that Schupper had called a meeting of truck drivers, subsequent to the return of Ballantine's and Kemble's rifles to Cumberland. At this meeting Kemble addressed himself to all the terminal employees and requested information as to the whereabouts of the rifles.

Kemble himself admitted that he had given the whiskey to Srymanske. He stated, however, that it was Kerr, rather than he, who actually delivered the case to the policeman. Kemble also admitted he had possessed a stolen rifle but asserted he did not know it was stolen. The rifle had been left at Kemble's house by Cumberland with Kemble's wife as a "Christmas present". Though Kemble's version disputes Cumberland's that the theft of the rifles had been discussed by Cumberland and himself prior to their actual stealing, Kemble did not deny that Schupper had informed him that rifles were missing or that he had attended the truck drivers' meeting to which we have referred. Moreover he admitted he did not report the theft*fn11 to the police until after Schupper had done so. Kemble insisted that he had Ballantine return the "Christmas present" as soon as he discovered its theft but he has offered no explanation of the silence he maintained toward Schupper during the period in which he knew that Schupper was looking for the missing rifles.

From the foregoing a jury might very well conclude that Kemble was guilty as charged. It is not disputed that Kemble gave Srymanske a case of whiskey in which he had no property right whatever of that the case was marked with the names of the consignor and consignee. We deem Kemble's admitted act to be sufficient to support his conviction upon the first count of the indictment. It is settled law in this circuit as elsewhere that a charge of theft of goods in interstate commerce may be predicated on circumstantial evidence and that on an appeal from a conviction the government's evidence must be taken as true. This court will not test credibility of witnesses. See United States v. Dolasco, 3 Cir., 184 F.2d 746, 748. That decision holds that the intent necessary for conviction on a charge of stealing goods in interstate commerce may be inferred from circumstantial evidence. We point out that the only evidence in the Dolasco case serving to connect the defendant with the theft was testimony that he had arranged storage for goods and that he was present at the taking.This was deemed sufficient. See United States v. Sherman, 2 Cir., 171 F.2d 619, 623, and Rice v. United States, 10 Cir., 149 F.2d 601, 603, which hold that guilty knowledge and intent may be inferred from the attendant circumstances.

The evidence in the instant case discloses a man familiar with the transportation of goods in interstate commerce. The jury could have found that Kemble converted the case of whiskey, intending to steal it. Kemble asserts that he proved he intended no loss to the owner of the whiskey because he directed Kerr to send a note to Schupper that if he, Schupper, would not pay for the whiskey, he, Kemble, would. But the jury was at liberty not to credit this evidence.Had the jury believed it they would not have convicted Kemble for he would have been found lacking the mens rea necessary to complete the crime. We cannot say that the jury did not make a rational interpretation of the evidence before it.

We also encounter no difficulty in respect to the second count of the indictment, charging unlawful possession of the rifle. There is no doubt that Kemble possessed a rifle stolen in interstate commerce. Cumberland told Kemble that he would steal the rifles and Kemble expressed a desire to have one. This is sufficient to support a finding by the jury as to Kemble's actual prior criminal knowledge and connects him with the crime. Again, the issue was one of credibility for the jury.

Other assignments of error remain for discussion. One of these relates to the court's charge to the jury as to accomplices. Kemble contends that the court usurped the jury's function of passing upon the bias of witnesses by directing it to disregard any promise of leniency which might have been made by the United States to Ballantine and Cumberland. We set forth in the margin the portion of the charge complained of in this regard.*fn12 We point out the court also charged the jury that "Accomplices when they give evidence against persons whom they claim committed the crime may be impelled to do so by motives which are inclined to pervert the truth. In other words, they may have reason for telling a lie, and it is your duty to give careful consideration to that question * * *," and "Tainted as they are with confessed criminality, accomplices are often influenced in their testimony by the strong motive of hope of favor or pardon.Therefore, the jury should look carefully into secret motives which might actuate bad minds to draw in and victimize the innocent."

It is clear the jury was told that any question of possible bias on the part of the witnesses was for their consideration and determination. When viewed in this light the portion of the charge complained of is a correct but positive exposition of the law, viz., that the court is not bound by any promise of leniency made by any prosecuting officer.*fn13 This was not error. Cf. Burcham v. United States, 82 U.S.App.D.C. 283, 163 F.2d 761, 762; United States v. Parker, 3 Cir., 103 F.2d 857, 862-863, and Shockley v. United States, 9 Cir., 166 F.2d 704, 718.

Kemble next contends that the charge of the court as to the probative value of circumstantial evidence was incorrect. In United States v. Dolasco, supra, 184 F.2d at page 748, we stated, "The rule with regard to this type of evidence is that for a conviction the evidence must exclude every reasonable hypothesis of innocence.*fn14 It may well be that the rule is archaic and based upon mistaken premises. It has, however, been reiterated many times in this and other circuits * * *." We suggest comparison of that portion of the rule as italicized above with the charge of the court in the instant case that circumstantial evidence "* * * must be such as to exclude every reasonable doubt of the guilt of the defendant * * *" and with the charge Kemble requested on this point, which was refused by the court. Kemble asked the court to charge that if the jury was to convict on circumstantial evidence such evidence must "exclude beyond a reasonable doubt every other supposition except that of guilt." We are at loss to perceive any substantial difference in these formulations. Each clearly directs the jury not only to determine whether the circumstantial evidence in sum points to guilt but also whether it excludes any hypotheses on which innocence may be predicated. It is clear that ...

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