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July 30, 1958

Joseph Dominick BUTCH

The opinion of the court was delivered by: DUSEN

This case comes before the court on defendants' post-trial motion for judgment of acquittal and, in the alternative, for a new trial, filed after a jury returned a verdict of guilty on both counts under which he was tried.

 At the time of filing his able brief in support of his motion, defendant pointed out for the first time that Counts V and VI of the Indictment did not state all the essential elements of the crimes of possessing and receiving stolen goods as set out in 18 U.S.C.A. § 659. Defendant contended in his brief and in his oral argument that, since these counts do not allege the place or facility from which the tires were stolen, he is entitled to a judgment of acquittal in view of United States v. Manuszak, 3 Cir., 1956, 234 F.2d 421, 422-423. However, only one count in the Manuszak case, supra, was based on 18 U.S.C.A. § 659, so that the missing elements of the crime were not contained in the allegations in any other count of that Indictment, whereas in this case the place or facility from which the 102 tires were taken (namely, a truck of Associated Transport, Inc., at Philadelphia) was alleged in the first count of this Indictment. *fn2"

 Although the trial judge recognizes the strength of the language in the Manuszak case, supra, and of the defendant's position in reliance on it, the decisions of the federal appellate courts indicate to the undersigned that it would not be applied to this situation because of the more detailed language in the first count of this Indictment. *fn2" In the Manuszak case, supra, there was no count in the Indictment charging the essential ingredient of the crime that the goods were stolen from a motor truck, vehicle or depot, whereas in the first count of this Indictment it was charged that the goods were stolen 'from a truck owned and operated by Associated Transport, Inc.' at Philadelphia. *fn2" The fifth and sixth counts containing the charges against this defendant for possessing and receiving the stolen goods, described these goods in identical language with that contained in the first count, so that it was clear to this defendant that he was being indicted for possessing and receiving the goods which had been stolen as described in the first count. *fn3" See United States v. Howell, 3 Cir., 1956, 240 F.2d 149, 152-154. Ever since Dunbar v. United States, 1895, 156 U.S. 185, 190, 15 S. Ct. 325, 327, 39 L. Ed. 390, the federal appellate courts followed the statement in this case that 'the entire indictment is to be considered in determining whether the offense is fully stated.' See Grandi v. United States, 6 Cir., 1920, 262 F. 123; Butzman v. United States, 6 Cir., 1953, 205 F.2d 343, 349; certiorari denied 1953, 346 U.S. 828, 74 S. Ct. 50, 98 L. Ed. 353; Carlson v. United States, 10 Cir., 1957, 249 F.2d 85, 88. In the Carlson case, supra, the fifth count of an Indictment was sustained on the ground that language in it was explained by wording of the first count, even though there was no specific reference in the fifth count to the first count. *fn4"

 Although the trial judge agrees that there is force in the able argument of counsel for the defendant on this point and that it would have been preferable form to incorporate in Counts V and VI, by specific reference, the language of Count I, *fn5" this Indictment conforms with the standards applied by the United States Court of Appeals for the Third Circuit to indictments when challenged after verdict. See United States v. Angelo, 3 Cir., 1946, 153 F.2d 247, 250; United States v. Howell, 3 Cir., 1956, 240 F.2d 149, 153-154; United States v. Allegrucci, 3 Cir., 258 F.2d 70, and cases there cited. *fn6" This is the type of objection to the Indictment that should be raised 'only by motion before trial,' *fn7" since the indictment as a whole alleges all the elements of the offense. Under these circumstances, Counts V and VI of the Indictment will be sustained. *fn8"

 After careful consideration of the record, he defendant's contention that the evidence is insufficient to sustain a conviction is rejected.

 In connection with the reasons stated in support of defendant's alternative motion for new trial, the verdict is supported both by the weight of the evidence and by substantial evidence. The defendant called no witness other than himself and the jury was entitled to believe the Government witnesses on points where the defendant's testimony contradicted them.

 Also, defendant argues that the jury was not adequately instructed on the weight to be given to defendant's admissions in Exhibit G-5. *fn9" Defendant admitted that all the statements save one *fn10" attributed to him in this summary of his talk with F.B.I. agents were made, but testified that the statements were not true (N.T. 224). He related the circumstances surrounding the giving of said statements, apparently in an attempt to say they were not voluntary, *fn11" and alleged that he made the statement because he was frightened. *fn12"

 Although error is now assigned to the trial judge for not instructing the jury more fully as to the weight to be given defendant's admission and as to the burden resting on the Government, counsel for defendant made no objection to the contends of the charge in these respects at the time it was given. In failing to object at that time, he may not now assign the omissions as error. *fn13" The trial judge gave adequate and impartial instruction to the jury on the conflict in testimony and the credibility of the witnesses (N.T. 316-9).

 Even if error was committed by the trial judge, the error was harmless and did not affect any substantial rights of the defendant. The defendant's own testimony corroborated virtually all the statements contained in Exhibit G-5. Even the one statement in said document which he alleged he never made to the Government officials was substantially admitted by him in his testimony (N.T. 228). Also, since there was other evidence in the record concerning the same issues, his substantial rights were not violated. *fn14"

 Defendant contends that the trial judge's supplemental charge to the jury, in answer to the following question asked by the jury after they had been deliberating for over an hour-and-a-half, was reversible error (N.T. 337):

 'If the jury finds the defendant guilty of knowingly possessing stolen goods on the 2nd of January can we find him guilty on Count No. 5 even though the indictment specifies a date of on or about the 21st of December?'

 The defendant had testified that the night before he was arrested he had read in the paper that Hadden and Donnelly had been arrested for stealing tires (N.T. 229, 257-8). The evidence showed that defendant was arrested on the afternoon of January 2, 1958. Count V alleged possession of the stolen tires 'on or about December 21, 1957.' After careful consideration, the trial judge has concluded that there was no error in this supplemental charge, *fn15" which gave an affirmative answer to this question.

 At the time set for sentencing the defendant, an order will be entered, denying defendant's ...

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