Hadsell v. United States

HUNT, Circuit Judge.

Writ of error to review a conviction under two counts of an indictment which charged violation of section 1, Act February 13, 1913, 37 Stat. 670 (Comp. St. § 8603), to punish the unlawful stealing of freight packages or articles in process of transportation in interstate shipment and the felonious possession or reception of the same.

Count 2 charged that defendants did unlawfully have in their possession certain described automobile tires, which had theretofore been feloniously stolen from a certain numbered and described railroad ear while said car was traveling between Watsonville Junction, in Monterey county, Cal., and Oakland, Alameda county, Cal., the said ear and the said goods therein contained constituting a part of an interstate shipment of freight consigned from a named consign- or and in transit 'from Akron, Ohio, to a named consignee in San Francisco, Cal., and which automobile tires in said car, at the time the tiros were stolen, were in possession of the Western Pacific Railroad Company, a common carrier; the defendants then and there at tho time of so having the tires in their possession as aforesaid, well knowing said tires to have been stolen as aforesaid.

Count 4 charged that at Oakland, Cal., defendants had certain cigarettes in their possession, which cigarettes had been feloniously stolen from a certain railroad car while the said car was traveling between Watsonville Junction and San Francisco, Cal., the said goods constituting a part of an interstate shipment of freight consigned to and in transit from New York to a consignee in San Francisco, which, at the time the cigarettes were stolen, was in the possession of the Southern Pacific Company, a common carrier; the defendants and each of them, at the. time of having said cigarettes in their possession, well knowing they had been stolen as aforesaid.

Defendants base their contention that no offense is stated in count 2 of the indictment upon the assertion that at the time charged in the indictment the Western Pacific Railroad Company did not own or operate a line of railroad connecting Watsonville Junction and Oakland, Cal. But the material question was not whether the Western Pacific owned or operated a line of railroad between the points named, but whether the tires were stolen from the ear described while being moved between the places named, and whether such tires constituted articles of an interstate shipment in transit between Akron, Ohio, and San Francisco, Cal., and whether defendants had the tires in their possession, and whether they received them, knowing they had been stolen. Similar questions were also material, under the allegations pertaining to the cigarettes, described in count 4. Ownership of the railroad was not a material matter.

As the indictment contained the essential averments of the elements of the offense as defined by the statute, it gave to defendants sufficient information to meet the charge. Bloch v. United States (C. C. A.) 261 F. 321; Rosen v. United States (C. C. A.) 271 F. 651.

This disposes of the only point presented by the record and requires affirmance of the judgment.

Affirmed.