UNITED STATES RAILROAD ADMINISTRATION W. G. MCADOO, DIRECTOR GENERAL BULLETIN NO. 1 FEDERAL STATUTES AND DECISIONS AS TO THEFTS FROM RAILROADS WITH EXCERPTS FROM KINDRED STATUTES ACT APPROVED FEBRUARY 13, 1913 (37 STAT. 670), SECTION 11 OF ACT APPROVED MARCH 21, 1918. ACT APPROVED AUGUST 10. 1917 (Priority Act). AND ACT APPROVED APRIL 20. 1918 .Sabotage Act). COMPILED BY THE PROPERTY PROTECTION SECTION DIVISION OF LAW ^ ISSl'El) BY DIVISION OF LAW JOHN BARTON PAYNE, General Counsel WASHINGTON GOVERNMENT PRINTING OFFICE 1">18 CONTENTS. Statutes: Fage. 37 Stat., 670. An art to punish stealing of freight, etc.. in interstate transit, or felonious possession of the same 5 Section 11 of the act of March 21, L918: Relative to conversion or embezzlement of money or property in posses- sion of railroads by officers, agents, and employees 6 Act approved Aug. 10, 1917: Relative to obstruction or retardation of the orderly conduct or move- ment of interstate or foreign commerce 7 Law against sabotage Court Decisions: Morris v. United States (8 C. C. A.), 229 Fed., 516 10 Friedman v. United States (1 C. C. A.), 233 Fed., 420 13 Kaslev. United States (6 C. C. A.). 233 Fed., 878 14 Forms of Indictment: Heard {and Dunn) v. United States 25 Greenburg et al. v. United States 27 United States v . Heyne 29 Order of Director General establishing Section for Protection of Railroad Prop- erty 32 3 URL FEDERAL STATUTES AND DECISIONS AS TO THEFTS FROM RAILROADS. 37 Stat., 670. \\ \t"r To punish the unlawful breaking ol seals of railroad cars containing interstate or foreign shipments, the unlawful entering of such cars, the stealing of freight and express packages or baggage or articles in process of transportation in Interstate shipment, and the felonious asportation of such freighl or express packages or baggage or articles therefrom into another district of the United States, and the felonious possession or recep- i ion of the same. /',, it enacted by the SenaU and II<>"s, of Representatives of the United States of Ann rica in Congress asst mbled, '1'hat whoever shall unlawfully break the seal of any railroad ear containing interstate or foreign shipments of freighl or express, or shall enter any such c-Af with intent, in either case, to commit larceny therein; or who- ever shall steal <>r unlawfully take, carry away, or conceal, or by fraud or deception obtain from any railroad car, station house, plat- form, depot, steamboat, vessel, or wharf, with intent t<> convert to his own use any goods or chatties moving as, or which are a part of or which constitute an interstate or foreign shipment of freighl or express, or shall buy, or receive, or have in his possession any such goods or chattels, knowing the same to have been stolen : or whoe> er -hall steal or shall unlawfully take, carrj away, or by fraud or de- ception obtain, with intent to convert to his own use, any bagg which shall have conic into the possession of any common carrier for transportation from one State or Territory or the District of Colum- bia to another Stale or Territory or the District of Columbia, or to a foreign country, or from a foreign country to any State or Territory or i he District of Columbia, or -hall break into, steal, take, carry away. <>r conceal any of the contents of such baggage, or shall buy. receive, or have in his possession any such baggage or any arti< therefrom of whatsoever nature, knowing the same t;. liave been stolen, shall in each case he lined not more than five thousand dollars or imprisoned noi more than ten years, or both, and prosecutions therefor may he instituted in any district wherein the crime -hall have been committed. The carrying or transporting of any such freight, express, baggage, goods, or chattels from one Stale or Terri- 5 U THEFTS FROM RAILROADS. tory or the District of Columbia into another State or Territory or the District of Columbia, knowing the same to have been stolen, shall constitute a separate offense and subject the offender to the penalties above described for unlawful taking, and prosecutions therefor may be instituted in any district into which such freight, express, bag- gage, goods, or chattels shall have been removed or into which they shall have been brought by such offender. Sec. 2. That nothing in this act shall be held to take away or im- pair the jurisdiction of the courts of the several States under the laws thereof; and a judgment of conviction or acquittal on the merits under the laws of any State shall be a bar to any prosecution here- under for the same act or acts. Approved, February 13, 1913. Section 11 of the Act of March 21, 1018. Sec. 11. That every person or corporation, whether carrier or ship- per, or any receiver, trustee, lessee, agent, or person acting for or employed by a carrier or shipper, or other person, who shall know- ingly violate or fail to observe any of the provisions of this Act. or shall knowingly interfere with or impede the possession, use, opera- tion, or control of any railroad property, railroad, or transportation system hitherto or hereafter taken over by the President, or shall knowingly violate any of the provisions of any order or regulation made in pursuance of this Act. shall be guilty of a misdemeanor, and shall, upon conviction, be punished by a fine of not more than $5,000, or, if a person, by imprisonment for not more than two years, or both. Each independent transaction constituting a violation of. or a fail- ure to observe, any of the provisions of this Act, or any order entered in pursuance hereof, shall constitute a separate offense. For the taking or conversion to his own use or the embezzlement of money or property derived from or used in connection with the possession, use, or operation of said railroads or transportation systems, the criminal statutes of the United States, as well as the criminal statutes of the various States where applicable, shall apply to all officers, agents and employees engaged in said railroad and transportation service, while the same is under Federal control, to the same extent as to per- sons employed in the regular service of the United States. Prosecu- tions for violations of this Act or of any order entered hereunder shall be in the district courts of the United States, under the direction of the Attorney General, in accordance with the procedure for the collection and imposing of fines and penalties now existing in said courts. THEFTS FROM RAILROADS. 7 Act Approved August 10, 1917 i Priority Act). Be it enacted by the Sennit* and House of Representatives of Ike United States of America in Congress assembled, That section one of the act enl ii led "An act to regulate commerce," approved Febru- ary fourth, eighteen hundred and eighty-seven, as heretofore amended, be further amended by adding thereto the following: "That on and after the approval of this Act any person or persons who shall, during the war in which the United Stales is now engaged, knowingly and willfully, by physical force or intimidation by threats of physical force obstruct or retard, or aid in obstructing or retard- ing, the orderly conduct or movement in the United States of inter- state or foreign commerce, or the orderly make-up or movement or disposition of any train, or the movement or disposition of any loco- motive', car. or other vehicle on any railroad or elsewhere in the United States engaged in interstate or foreign commerce shall be deemed guilty of a misdemeanor, and for every such offense shall be punish- able by a fine of not exceeding $100 or by imprisonment for not ex- ceeding six months, or by both such fine and imprisonment; and the President of the United States is hereby authorized, whenever in his judgment the public interest requires, to employ the armed forces of the United States to prevent any such obstruction or retardation of the passage of the mail, or of the orderly conduct or movement of in- terstate or foreign commerce in any part of the United States, or of any train, locomotive, car. or other vehicle upon any railroad or else- where in the United States engaged in interstate or foreign com- merce: Provided, That nothing in this section shall be construed to repeal, modify, or affect either section >ix or section twenty of an Act entitled 'An Act to supplement existing laws against unlawful re- straints and monopolies, and for other purposes,' approved October fifteenth, nineteen hundred and fourteen. * * *." Law Against Sabotage. AN ACT To punish the willfui Injury or destruction of war material, or of war premises or utilities used in connection with war material, ami for other purposes. Be it enacted by the Senate and House of R< pn s< ntatives of the United States of America in Com/ res* assembled, That the words "war material," as used herein, shall include arms, armament, am- munition, live stock, stores of clothing, food, foodstuffs, or fuel: and shall also include supplies, munitions, and all other articles of whatever description, and any part or ingredient thereof, intended for, adapted to, or suitable for the use of the United States, or any associate nation, in connection with the conduct of the war. 8 THEFTS FROM RAILROADS. The words " war premises," us used herein, shall include all build- in-.-, grounds, mines, or other places wherein such war material is being produced, manufactured, repaired, stored, mined, extracted, distributed, loaded, unloaded, or transported, together with all ma- chinery and appliances therein contained; and all forts, arsenals. nav\ yards, camps, prisons, or other military or naval stations of the United States, or any associate nation. The words "war utilities," as used herein, shall include all rail- roads, railways, electric lines, roads of whatever description, rail- road or railway fixture, canal, lock, dam. wharf, pier, dock, bridge, building, structure, engine, machine, mechanical contrivance, mr. vehicle, boat, or aircraft, or any other mean- of transportation what- soever, whereon or whereby such war material or any troops of the United States, or of any associate nation, are being, or may be. trans- ported either within the limits of the United States or upon the high seas; and all dams, reservoirs, aqueducts, water and gas mains and pipes, structures and buildings, whereby or in connection with which water or gas is being furnished, or may be furnished, to any war premises or to the military or naval forces of the United States, or any associate nation, and all electric light and power, steam or pneu- matic power, telephone and telegraph plants, poles, wires, and fix- tures and wireless stations, and the buildings connected with the maintenance and operation thereof used to supply water, light, heat. power, or facilities' of communication to any war premises or to the military or naval forces of the United States, or any associate nation. The words "United Stales** shall include the Canal Zone and all territory and waters, continental and insular, subject to the jurisdic- tion of the United States. The words "associate nation.*' as used in this act. shall be deemed to mean any nation at war with any nation with which the United States is at war. Si:c. 2. That when the United States is at war, whoever, with intent to injure, interfere with, or obstruct the United States or any associate nation in preparing for or carrying on the war. or who- ever, with reason to believe that his act may injure, interfere with, or obstruct the United Stale- or any associate nation in preparing for or carrying on the war. shall willfully injure or destroy, or shall attempt to so injure or destroy, any war material, war premises, or war utilities, as herein defined, shall, upon conviction thereof, be fined not more than $10,000 or imprisoned not more than thirty years, or both. Sec. 3. That, when the United States is at war. whoever, with intent to injure, interfere with, or obstruct the United States or any associate nation in preparing for or carrying on the war, or who- ever, with reason to believe that his act may injure, interfere with, THEFTS FROM RAILROADS. V or obstruct the United States or any associate nation in preparing for or carrying on the war. shall willfully make or cause to lie made in a defective manner, or attempt to make or cause to be made in a defective manner, any war material, as herein defined, or anj tool, implement, machine, utensil, or receptacle used or employed in making, producing, manufacturing, or repairing any such war material, as herein defined, shall, upon conviction thereof, be lined not more than $10,000 or imprisoned not more than thirty years, or both. Approved. April 20, L918. [The foregoing -rems to come within the scope Of the activities of the property-protection section only so far as the act relates to willful injury, interference with, or obstruction to railroads, engines, cars, and the like, to the extent, and under the conditions that the act is applicable thereto.] 52486°— 18 2 COURT DECISIONS. [Under the act of Congress February 13, 1913. 37 Stat., 070.] Circuit Court of Appeals, Eighth Circuit. \Y. H. MORRIS v. UNITED STATES. Before Adams and Carland, Circuit Judges, and Trieber, District Judge. 11229 Fed. Rep. 510.] OPINION OF THE COURT. Trieber, District Judge, delivered the opinion of the court: The defendants were indicted, charged with violations of the act of Congress of February 13, 1913 (37 Stat., 670). There were three counts in the indictment; but, as the defendants were only convicted on the first and second counts, the third need not be considered. The first count charges the defendants with entering a car. in the Western District of Oklahoma, belonging to the Atchison. Topeka & Santa Fe Railway Co. (giving a description of the numbers and letters on the car), containing a shipment of shoes consigned b}^ the W. L. Douglas Shoe Co.. at Brockton, Mass., to the Boot & Shoe Hospital, at Los Angeles, Cal., while en route between these two points, with the intent to commit larceny therein, the shipment being an interstate shipment. The second count charges the crime of larceny from the same car. (1) The sufficiency of the indictment is attacked upon several grounds. It is claimed that the act is unconstitutional, as Congress possesses no police power; that being reserved to the States. While it is true that the States reserved the police power to themselves, it is now equally well settled that as to those powers, which are ex- pressly granted to Congress by the National Constitution, it possesses a power analogous to that of the police power. In re Debs, 158 U. S., 564, 15 Sup. Ct. 900, 39 L. ed. 1092; Camfleld v. United States, 167 U. S., 518, 17 Sup. Ct., 864, 42 L. ed. 260; Hoke v. United States, 227 U. S., 308-323, 33 Sup. Ct., 281, 57 L. ed., 523, 43 L. R. A. (N. S.), 906, Ann. Cas. 1913"E, 905; United States v. Shauver (D. C), 214 Fed., 154. In Hoke v. United States, Mr. Justice McKenna, delivering 10 THEFTS FROM RAILROADS. 11 the unanimous opinion of the court, after reviewing the former de- cisions of the court, said: The principle established by the cases is a simple one, when rid of confusing and distracting considerations, thai Congress has power over transportation "among the several States," thai the power is complete In itself, and thai Con- gress, as an incidenl to it, may adopt ao1 only means necessary, bul convenient to iis exercise, and the means may have the quality of police regulations. By the commerce clause Congress has the power to regulate all in- terstate commerce, and consequently to protect it from destruction or depreciation, the same power which il possesses under thai clause of the Constitution which grants it the power to establish the Posl Office Department. Nor does it matter thai the same offense, breaking into a railroad car for the purpose of committing larceny therein, and the larceny itself, may he punished under the laws of the State where the offense is committed, as it is now well settled that certain acts may he in violation of hoth State and National penal code-, and may he prosecuted in either of these courts. Houston v. Moore, 5 Wheat., 1. 5 L. ed., 19 ; Fox v. f )hio, 5 How., 410, 12 L. ed., 213 ; UniU d States v. Marigold, 9 How., 500, 13 L. ed., 257; United States v. Arjona, L20 i". S., t79, 7 Sup. Ct., 628, 30 L. ed., 728; Cross v. North Carolina, 132 U. S., 131, 10 Sup. Ct., 17, 33 L. ed., 287. There is no reason for doubting the constitutionality of the act. The sufficiency of the indictment is also attacked upon a number of grounds. It is claimed that neither of the counts is specific enough. (2) In the first count the indictment follows the language of the statute and describes specifically the car which was broken into, that it was the property of the Atchison, Topeka & Santa Fe Railway Co. : that it contained an interstate shipment from the Slate of Massachu- setts to the State of California ; gives the name of the consignor in Massachusetts and the consignee in California ; and that the breaking into the car was with the intent to commit larceny therein. (3) The second count also follows the language of the statute, charging that it was an interstate shipment, as charged in the fir-t count, descrihes the property stolen, and, in fact, describes the larceny with all the particularity required by the common law. It charges all the facts necessary to enable the defendants to prepare for their de- fense and to plead former jeopardy in case they are again indicted for these offenses after an acquittal or conviction on this indictment. This is all that is necessary, rotter v. United States, 155 U. S., 138, 15 Sup. Ct., 144, 39 L. ed.. 21 1 : Jolly v. United States, L07 V. S.. 102, 18 Sup. Ct, 624, 42 L. ed., 1085; Consid dne v. United States, 112 Fed., 342, 50 C. C. A.. 272; Bowers v. United States, 148 Fed., 379, 78 C. C. A., 193; Thompson v. United States, 202 Fed., 401, L20 C. C. A., 575, 47 L. R. A. (N. S.), 206; Breese v. United states, 226 U. S., 1, 33 Sup. Ct., 1, 57 L. ed., 97. The tendency of most of the ] j THEFTS PROM RAILROADS. courts al this day, and especially the Supreme Court of the United States, is to disregard technicalities which can in no way be preju- dicial. (I) [t is also claimed that the indictment is defective, as it fails to allege thai the railway company, the owner of the car, was an orporated company. In view of section L025, Revised Statutes (< omp. St. L913, see. L691), this is unnecessary, as we are unable to see how that omission can have any tendency to the prejudice of the defendant. Caha v. United States, L52 U. S., 211 -221, II Sup. Ct., 513, 38 L. ed., 115: Frisbie \. United States, 157 (J. S., 161 -164-168, 15 Sup. Ct., 586, 39 L. ed:, 657; Connors v. United States, L58 l". S., 108 111. 15 Sup. Ct., 951, 39 L. ed., 1033; .V, w York Central Rail- road. Company v. United States, 212 V . S., 181- 197, 29 Sup. Ct., 304, 53 L. ed., 613; Clement v. United States, 149 Fed.. 305, 79 C. ( \ A.. •243. decided bv this court, and in which certiorari was denied. Under similar statutes of many States it has been held that it is unnecessary to charge in the indictment that the company, whose house was broken into, or whose property stolen, was an incor- porated corporation. Burke v. State, 3 I Ohio St.. 7!>: People v. Rogers, si Cal., 209, 22 Pac, 592; Fisher v. State, Mi X. .1. Law. 169; State \. Simas, ^ Nev.. 432. 62 Pac.. ^ 1 - J . (5) It is next claimed that there can he no conviction on both counts. But this has been adversely decided in Morgan v. Devine, 237 1". S., G32, :;:» Sup. Ct.. 712, 59 L. ed.. 1153. Besides, the sen- tences on both counts are the same and concurrent. ::: : ; ; ***** (7) The learned counsel for the defendants strenuously insist that there was not sufficient evidence to wan-ant the finding that the crime, if committed by the defendants, v as committed in the Western District of Oklahoma. The evidence shows that after the train had |,.ft the town of Kiowa, in the State of Kansas, which is about one mile north of the Oklahoma line, two men. whom he did not recognize then, as he was too far from them, were sitting at the head end of the train, and that some time after that the defendant Morris ap- peared with the shoes. When Morris appeared with the shoes the train had proceeded at least 1 I miles in the Western District of Okla- homa. Even if it he conceded that the evidence was not sufficient to establish, beyond a reasonable doubt, the breaking into the car in the Western District of Oklahoma, it certainly was sufficient to justify the verdict of guilty on the second count, that of larceny, for that offense is a continuous offense, and although committed in one dis- trict, if the stolen property i- brought into another district, with the intent there to feloniously convert the stolen property, the guilty party may be tried in either district. Perara v. United States, 221 Fed.. 213.' 136 C. C. A., 623. decided by this court. THEFTS FROM RAILROADS. 13 ('8) A- before stated, a^ the punishment imposed <>m both counts is the same and run; concurrently, it cau work ao prejudice to the defendants, even if there was uo evidence i<> warrant the verdict of guilty on the firsl count, I he evidence clearly \\ arrant ing ;i com id ion CMl the second count. i ( .>) There was nf the defendant at the time and place where the thefl was committed, justifies a finding of guilty. United States v. ■/<> (C. C), 31 Fed., 718; WUey v. State, 92 Ark.. 586, li\ S. W., 249. i LO) Nor was it error to refuse to give the instructions asked on behalf of the defendants as to the effect of their good reputation in the community in which they had lived, as the court covered this phase of the ease even more favorably to the defendants than was asked by their instruction. The court charged the jury on that point : Testinionj has been introduced here tor the purpose of showing the good reputation of the defendants in the community in which they have lived. That testimony is competent for your consideration. In the light of it you should view all tlie evidence in the case in determining the guilt or innocence of the defendants, and whether you are convinced of the defendants' guilt beyond a reasonable doubt, or entertain such a reasonable doubt of their guilt. Bui you arc instructed, if after you have considered all the evidence, including thai which ha* been introduced here upon the subject of their reputation, you are satisfied beyond a reasonable doubt that the defendants are guilty, then it will be your duty to convict them, notwithstanding the evidence upon the subject of their reputation. Edgington v. United States, 1<>4 U. S., 361, which counsel for these defendants rely on, does not sustain their contention. * * * The judgment is affirmed. Circuit Court of Appeals, First Circuit. FRIEDMAN v. UNITED STATES. Before Pitman and Donor.. Circuit Judges, and Brown, District Judge. [233 Fed. Rep. 429.] OPINION OF THE COURT. Pu'i'M -\\. Circuit Judge, delivered the opinion of the court: This indictment was laid under the act of February L3, 1913, 37 Stat., 670, c. 50 (U. S. Comp. St. L913, sees. 8603, 8604), charging the defendant with unlawfully receiving and concealing certain brasses stolen from a box car at Springfield while constituting a part of a shipment from Concord. N. II.. to Springfield. Mass. The 14 THEFTS FROM RATI. ROADS. merchandise belonged to the Boston & Maine Railroad and was a part of its cars being forwarded to the repair shops of the railroad corporation. (1) Claim is made that, as this material was carried without compensation, and was all the time the property of the Boston & Maine Railroad, it was not within the statute. However, as it was being transported as freight it was within the letter of the statute, and we know of no reason which takes it out of it. The same words are often used in many different senses, but this word is appropriate for the application made of it here. (•J) Once in interstate commerce we think the goods transported ;,- freight retained the character thus acquired and were under the protection of the act, like mail matter, until they reached their ulti- mate desl ination. (3, 1) The plaintiif in error fails to satisfy us that the act. thus understood, violates any constitutional provision. Whoever receives stolen goods, knowing them to be stolen, takes the risk, in our opinion, of their having been stolen during transportation in interstate com- merce and of their being thus within the protection of the act. The plaintiff in error also fails to satisfy us that there was preju- dicial error in any of the exclusions of testimony to which he excepted. The judgment of the District Court is affirmed. Circuit Court of Appeals, Sixth Circuit. KASLE v. UNITED STATES. Before Warrington and Denison, Circuit Judges, and Hollister, District Judge. [233 Fed. Rep. 878.] OPINION OF THE COURT. Warrington, Circuit Judge, delivered the opinion of the court: Kasle was convicted and sentenced under an indictment charging him with unlawfully and feloniously having in his possession certain goods and chattels, knowing them to have been stolen from a railroad freight station while in course of shipment in interstate commerce. A motion to quash the indictment was overruled. At the close of the evidence offered by the Government, the defendant moved that the evidence be withdrawn and a verdict directed in his favor, and the motion was denied. Again, at the close of all the evidence defendant renewed his motion for a directed verdict on the ground that there was no evidence to sustain the allegations of any of the counts of the THEFTS FROM RAILROADS. 15 indictment, which was granted as to the first count and overruled as to the second and third counts. A^ide from the ruling upon the first count, exceptiou was reserved and error assigned upon each of the rulings mentioned ; and some twenty additional assignments are pre- sented upon exceptions reserved in the course of the trial concerning rulings in admitting and rejecting testimony and certain instructions contained in the charge to the jury. Defendant prosecutes error. 1. The motion to quash the indictment is based on six grounds, the first four of which are. in substance, that at the time the goods and chattels are alleged to have been in defendant's possession it doe- not appear in any of the counts (a) that defendant knew they had been stolon, taken, or carried away from interstate commerce, (b) that they were interstate commerce or a part thereof, (e) that they re- tained their character as an interstate shipment of freight, (hio. in the division and district aforesaid, and within the jurisdiction of this court, un- lawfully and feloniously did knowingly have in his possession certain goods and chattels, to wit, ten pigs of tin. consisting of about eleven hundred and nineteen 16 TUKI-IS FROM KA II. ROADS. pounds of tin, which said goods and chattels had theretofore, to wit, on or about the Ttli day of September, 1913, been a part of an interstate shipment of freight in course of shipment in interstate commerce, and had been unlawfully and felo- niously stolen, taken, and carried away from a certain railroad station house at Toledo, in the county of Lucas. Ohio, known and described as the New Vork Central Terminal Freight station, at Toledo aforesaid, while said goods and chattels were so in course id' shipment in interstate commerce from the Pope Metals Company, al New York, in the State of New York, to the Union Steel Screen Company, at Albion, in the Stale of Michigan, he, the said Sam Kasle. at the time and place aforesaid, when, as aforesaid, he so unlawfully and feloni- ously had the said goods and chattels in his possession, well knowing the same to have been stolen — contrary CO the form of the statute of the United States in such case made and provided, and against the peace and dignity «>f the United States.) Comparison of the allegations of the count with the lir-i four grounds stated in the motion to quash will show these grounds to be without merit, since defendant was charged with knowingly, and so unlawfully and feloniously, having in his possession distinct goods and chattels which had been stolen, taken, and carried away from a named railroad station in Toledo, Ohio, while in course of shipment in interstate commerce between points named in the counts. It is true, as the first ground of the motion to quash states, that it is not charged that at the times the goods and chattels are alleged to have been in his possession defendant knew they had been stolen from interstate commerce. (2) As we interpret the statute such an allegation is not necessary. One who knowingly receives stolen chattels must do so at the peril of their having been stolen while in course of interstate transporta- tion ; indeed, it is not perceived why the thief should escape convic- tion under this statute just because he did not know the points of origin and destination. Manifestly, both the receiver and the thief are chargeable with knowledge of the act of Congress forbidding this particular theft, quite as certainly as they are of a state statute prohibiting theft generally. The status of the articles, in the sense of being interstate or intrastate in character, can not in the nature of things affect the fact either of the stealing or receiving alleged: and the statute, whether Federal or state, is at bottom aimed against stealing or receiving. The most, then, that can be said of the object of allegation, as well as proof, touching the interstate character of the articles is to show the existence of the condition which brought the subject within the Federal power and jurisdiction. (3-6) The last two grounds of the motion to quash, however, pre- sent some difficulties. Ownership of the goods and chattels described in counts 2 and 3 is not in terms laid in any particular person or com- pany, either by absolute or qualified title, at the times the articles were severally alleged to have been " feloniously stolen, taken, and carried away from a certain railroad station house * * * known THEFTS FROM RAILROADS. 17 and described as the New York Central Terminal Freight Station." Neither the name of the owner of the station nor any excuse for it^ omission is to be found in the counts. Presumably the owner of the -t;il ion held ;m interest in the goods and chattels which was suffi- cient for all purposes of the indictment. The rule is that specific ownership must be alleged and proved, but a special property, such us that of a bailee, carrier, or the like, in goods stolen, is sufficient for purposes of an indictment, say, for larceny (2 East's P. t '.. 652 : 1 Wharton ('rim. Law, sec 932; Wharton American Crim. Law, l»|). 7. 658; Darter v. Commonwealth, ■> S. W., 18, !» Kv. Law Rep., 277,278; Commonwealth v. Finn, 108 Mass., 166, 168; Commonwealth v. Rubin. If,:, Mass., t53, 454, 43 N. E., 200; .l/A// v. State, \'.\\ Ala.. L59, 165, •"»•_' South.. 318); and in this respect there i- no difference in principle between the offense of larceny and that of receiving stolen goods (3 Bishop's New Crim. Procedure, sec. 982); bid 1. in his treatment of the subject of indictment- for receiving stolen goods, Mi'. Bishop says: "The owner'- name is essential in identifica- tion; hence to he stated if known" (Id., sec. :>^:; ; StaU v. McAloon, 10 Me.. !:»»••;. 135; Statt v. Polland, 53 Me.. 124, L25; Miller \. People, 13 ('oh... 166, K',7. 21 Pac, L025; Brothers v. State, ±2 Texas A.pp., 147, !<'•-'. 3 S. \\\. 737; Zweig v. Statt (1913) 71 Tex. Cr. R., 306, 171 S. \\\. 717. 7I!>) : and the rule so laid down by Bishop is in effect recognized in Kirby v. United States, 171 Q. S.. 47. Gl, 19 Sup. Ct., 574. 43 L. ed., N00, where contention that the indictment was defective because it did not allege ownership by the United State- of the stolen article- ,ii the time they were alleged to have been feloniously re- ceived by the accused was denied, hut the reason given was that the indictment alleged the articles to he "the property of the United State-.*' The present counts "2 and •"> do. however, name the con- signees of the goods and chattels in question, the name stated in the second being Union Steel Screen Co.. and in the third Koblitz, Kohn & Co.; and ordinarily this would be sufficient for all purposes of identification of the articles in dispute and so of the indictment, since delivery to a common carrier is delivery to the consignee in the ahsence of agreement to the contrary, even though the carrier is not designated by the consignee. Commonwealth v. Sullivan, 1r other effects from, or belonging to, any ship or vessel, • • * which shall be In d or which shall be wrecked, lost, stranded, <>r casl away, upon the sea, or upon any reef, shoal, hank, or rocks of the or in any plan- within the admiralty <>r maritime jurisdictii t the United Slates. AJthough the question of ownership, with which we arc now con- cerned, did not arise in thai case, it is noteworthy thai the ind nicnt is there stated (37 U. S. (12 Pet), 74, 9 L. ed., 1004) to have charged thai the merchandise stolen "belonged t<> the ship Bristol, tin 1 said ship then being in distress," etc. (Id.) It hardly is to !>e inferred that absolute title t<> such merchandise was in the owner of the ship, though the merchandise might well have been in the custody and control of the ship Eor purposes of transportation; and -nice no question concerning the form of the indictment was certified it is to be presumed thai the allegation that the merchandise "belonged" to the ship was open to such an interpretation as this and also v regarded as sufficient to identify the stolen articles and so to sustain the indictment. "We are led to believe upon the whole thai wherever the place of custody and control of articles of interstate freight alleged to have been stolen therefrom Palls within the language of the statute and is permanent in character and adapted and generally used for such custody and control, like a railroad station, it is not essentia] to the validity of an indictment similar in object to the present one that owner-hip in either the place or the articles be dis- tinctly alleged (Stat< v. Casavant, 64 Vt., t05, 107, 23 Ail., 636); and this is for a stronger reason than can be ascribed even to a dis- tinctive though stranded ship like the Bristol. These views will not of course be interpreted to apply to a movable place of custody, such as a freight car, from which goods claimed to have been stolen and subsequently feloniously received in possession are made the subjects of indictment. The necessity for applying the rule of identi- fication in that kind of a case may be conceded, for the reason that a place of custody described only as a freight car would imply no such distinct identity as does a freight terminal station in a city; but plainly that reason can have no application here. It was nee sary, it is true, that the elements of the offense charged should be stated with such particularity as fairly to apprise defendant of what he must meet, and in the event of conviction or acquittal to enable him to plead the indictment in bar of any subsequent prosecution for the same offense; and these requirements we think were sufficiently met [Armour Packing Go. v. Unit s tes, 209 U. S., 56, 83, 28 Sup. Ct, 1:28, 52 L. ed.. 681; Cochran and & v. Uni 'Si L57 I'. S.. 286, 290, 15 Sup. Ct., 628, 39 L. ed., T«»l : Grand Rapids & 1. Ry. Co. v. United States, 212 Fed.. 577, 583, L29 C. C. A.. L13, and cita- tions (C. C. A., 6)) ; the motion to quash the indictment was there- fore rightly denied. 20 TUKI i .- I ROM l: ' [LBOADS. (7,8.) •_'. The assignment concerning denial of defendant's motitm to direct a verdict ;ii the close of the Government's evidence is not available, since the alleged error was waived by the introduction of evidence for defendant {Sandals v. United States, 213 Fed., 569, 573, L30 (('.('. A., 149); Tucker v. United States, 224 Fed., 833, 837, L40 <". ('. A.. 279 (C. C. A. 6)); but such waiver did not affect the right of defendant to have the sufficiency in law of the entire evidence considered upon the motion to direct made at the close of all the testimony (Tucker v. United States, supra, 224 Fed., 837, 140 C. C. A.. 279). Our consideration of afl the evidence, however, satisfies us thai the Last motion to direct was rightly overruled as to the second and third counts. In reaching this conclusion we are not unmindful of the contention that defendant was charged with knowingly re- ceiving stolen property, and that the evidence tended at most to show only that he received embezzled property. This is a misapprehension of the relation borne to the property in dispute by the tallymen, who appear to have had more or less to do with its alleged theft. They were to " check freight in and out of cars," rather than to take it into their possession and control: they were not intrusted with the prop- erty in the sense that their acts of taking and disposing of it for their individual benefit amounted to embezzlement; such a taking, if ii occurred, was simply larcenous. State v. 0. B. Smith, 250 Mo., 350, 367, 157 S. W., 319. The decision in that case i- sufficient to point the distinction which renders the decisions of the same court, relied on by defendant, inapplicable (StaU v. Gennusa, 258 Mo.. 273, 274, 167 S. W., 439; State v. George, 263 Mo., esc. 17:; s. \V.. 1077. 1078) ; for in the latter cases the property in question was intentionally committed to teamsters for purposes of transportation and specific delivery, and after possession was taken the conversion was committed in the course of executing the duty. (9) 3. We come next to the errors assigned respecting the charge of the court. The first instruction to which exception was reserved dealt with the question whether the goods anil chattel- " ; were articles in interstate transportation and were stolen," and also with the cir- cumstances which might be considered in determining that question. The court stated that both the pic: fin and the brass seemed to have been subjects of interstate transportation, and that the jury might '"use the circumstances surrounding these shipments and any other circumstances that give to you (the jury) the right to indulge in rea- sonable inferences that men use under like circumstances to deter- mine" the fact or not of theft. The exception mentioned concerned this latter portion. It is true that this instruction affected defendant in the sense that he could not be rightfully convicted of knowingly receiving stolen goods that were not shown to have been stolen, yet in THEFTS PBOM RAILROADS. 2 L our view of the evidence the instruction could n<>t have prejudiced the defendant. Following that subject it wassaid: ir you determine thai you can tdentifj as stolen two barrels of brass or any portion of the shipment of brass referred to in the exhibits in question, or the pi<: tin referred to in the exhibits In question, if that Identification satisfies you beyond a reasonable doubt, then, of course, logically, your aexl Inquirj is whether either or both of those classes of articles, on one counl or the other, came Into tbe possession of the defendanl Sam Kasle. Sou musl carrj the identifieal Ion, of course, to him. * * * Then, if yon find, bey I a reasonable doubt, either this brass or this tin In Sam Kasle's possession, you musl proceed then to determine whether he had possession of either or both of those classes of articles, knowing that they were stolen. I maj saj to you, in the first place, that the law is thai the possession of stolen propertj imputes knowledge in the possessor that it was and is stolen, unless the possessor explains his possession in such a wa\ as to Tree his mind i as to free him? I from that presumption. The law also is that one who acquires possession of stolen property under conditions and circumstances which would put a reasonable man who was honest upon inquiry as to the character of that property, is deemed to have just such knowledge of the character of the property as would come to him had he made the reasonable inquiries as to the source of the property which would occur to an honest man of average intelligence under the circumstances in which he gol it; that one who takes into his possession personal property is chargeable with the duly of giving attention to those circumstances attending ids reception of the property which in your judgment should have been deemed h\ him at the time to be suspicious and suggestive thai the rifle of him who was transferring it was open to question. As we understand these portions of the charge, the jury was in substance instructed to find: (a) Whether the goods and chattels in issue were articles of interstate transportation; (b) whether they were stolen while in course of such transportation; (c) whether defendanl came into possession of them; and, if these findings were in the affirmative, then to find (d) whether defendant received the articles knowing them to have been stolen. Later it was said of the statute : This law makes one of the essential elements of the ot't'ense possession with knowledge. If error was committed in respect to the ultimate issue of fact, it was not in defining it but in stating the tests to which the jury might resort in resolving the issue one way or the other. One of the tests was in effect that a person who receives property, which in fact is stolen property, under circumstances which would put a reasonable and honest man upon inquiry, is chargeable with such knowledge in that behalf as would have come to him had he made such reasonable inquiries, touching the source of the property, as would have oc- curred "to an honest man of average intelligence." Another test was that one receiving personal property is chargeable with the 22 THEFTS FROM RAILROADS. particular effect of "those circumstances attending his reception of the property," which, in the judgment of the jury. " should have been deemed by him at the time to be suspicious and suggestive that the titic" of the transferor "was open to question.'' Plainly such tests as these of guilty knowledge on the part of the accused subjected him to a standard of conduct and of capacity to detect criinc. which the jury might conclude to be the standard of reasonable and honest men of average intelligence when acting under circumstances like those which might be found to have existed here. The effect of such tests was to charge the accused with guilty knowl- edge or not upon what the jury might find would have induced belief in the mind of a man such as they were told to consider, rather than the belief that was actually created in the mind of the accused; or, at lea-t. the accused might be condemned even if his only fault con- sisted in being less cautious or suspicious than honest men of aver- age intelligence are of the acts of others. The result of the rule of the charge would be to convict a man. not because guilty, but be- cause stupid. The issue was whether the accused had knowledge — not whether some other person would have obtained knowledge — that the goods had been stolen. The circumstances must have had that effect upon the mind of the accused, to constitute knowledge in him. The issue must be determined upon the individual test of the accused. It may well be that the tests stated in the charge are proper enough to fix civil liability for the acts or omissions of a defendant, but hardly to fasten upon him an intent to commit a felony. There is some conflict in the decisions upon this subject, but we think the tests of the charge are opposed to the clear weight of authority; this may be fairly illustrated by the following: State v. A /pert, 88 Vt. 191, 204. 92 Ath, 32; Peterson v. United States, 213 Fed., 920. !»22. 923, 130 C. C. A., 398 (C. C. A., 9) ; StaU v. Rountree, 80 S. C, 387, 391, 61 S. E., 1072. 22 L. R. A. (N. S.), 833; State v. Daniels, 80 S. C, 3G8, 371, 61 S. E., 1073; State v. Goldman, 65 N. J. Law, 395, 397, 47 At I.. 611 ; (John v. People, 197 111., 482, 485, 64 N.E., 306; Robinson v. State, 84 Ind., 452, 156; State v. Denny, 17 N.' D., 519, 525, 117 X. W., 869; Forresti r v. State, 69 Tex. Cr. R., 62, 152 S. W., 1041, 1042: Pickering v. United states, 2 Okl. Cr., 197, 101 Pac, 123, 124; Drummond v. State, 103 Miss., 221, 224, 60 South., 138. (10) It is not meant to say, however, that conviction can not be established upon circumstantial evidence. While there was direct testimony and specific denial of guilty knowledge on defendant's part, yet there Avere in addition circumstances of more or less tend- ency to show as well as to refute such knowledge; the relevancy of such circumstances, when not too remote, can not of course be rightly denied ; but, apart from instructions as to whether the property was THEFTS FROM RAILROADS. 23 in fad stolen, no difficulty is perceived in applying the circumstances directly to the accused wit 1 1 a view of testing the question of notice or knowledge on his part, at the times he received the goods and chattels, that they had been stolen (if in fact they were n). ill) Another feature complained of in the charge is, as already shown, that the laW is stated to be: Thai the possession of stolen property imputes knowledge in the possessor that it was and is stolen, unless the possessor explains his | on in such a way as i<> free his mind las in free him?) from thai presumption. We gather from the context that this portion of the charge was intended to he applied only in case it should first be found, as already stated, that the articles in issue — the tin and the brass, or either —had been stolen while in course of interstate transportation, and that either or both had come into defendant's possession; but in that event the jury was to approach the ultimate question subject to a presumption that defendant received the articles with knowl- edge that they had been stolen. This question was of course vital to the defendant. He was not charged with the theft; the only tendency of the proofs in that behalf is that* the theft was com- mitted by others; and these acts, it' committed, constituted larceny. The charges that defendant had the articles in his possession with knowledge of the theft do not in terms allege that such possession was taken in aid of the larceny, hence each charge made against defendant was for an offense distinct from the antecedent larceny. The instant case therefore differs from a case where, for instance, the statute so defines the act of receiving stolen property and that of stealing it as in effect to make the two offenses the same in char- acter. Under a statute of that kind the receipt may amount to larceny, as well as the theft: and so the same presumption arising from recent possession that would be applicable to the thief might also be to the receiver. Thus in Martin v. State, 101 Ala.. 71, 7-. 16 South.. 82, under an indictment for both larceny and knowingly receiving, it was "held that recent possession of stolen goods im- poses on the possessor the onus of explaining the possession."' etc; but. as we understand, the case arose under a statute in which it is provided : Any person who buys, receives, conceals, or aids in concealing any personal property whatever, knowing that it has heen stolen, and not having the intent to restore it to tin- owner, nmsi. en conviction, In- punished as it' he had stok>n it. cj Crim. Code Ala.. 1S96, sec. 5034, p. 369.) To the same effect is Jenkms v. State, 62 Wis., p.i. 21 X. \\\. 232, and also the statute (2 Sanborn & Berryman Ann. Stat.. Wis., sec. 4417); moreover, the decisions mostly relied on there relate to cases of larceny (62 Wis.. :.7. 58, but see p. 61, -21 N. W., 232); State v. Record, 151 X. C, 695, »'>i>7, 65 S. E., 1010, 25 L. R. A. (N". S.) f 24 THEFTS FROM RAILROADS. 561, 19 Ann. Cas.. 527, and 2 Pell's Ke\ isal of 1908 (N. C), sec. 3507: and Reg. v. Langmead I L864) 10 L. T. (N. S.), 350, 351, and 101 Stat. (24 and 25 Vict, L861 i. 361, sees. 91, 92; and also 2 Archbold's (Vim. Pr. & PI.. 11-'-. The statute last referred to (and which ap- parently governed Langmead's case) provided that a person re- ceiving stolen property. " knowing the -nine to have been feloniously stolen," should be guilty of a felony and might be " indicted and convicted either as an accessory after the fact or for a substantive felony," etc., and also provided that an indictment might contain a charge of "feloniously stealing any property," and also one or more counts for "feloniously receiving the same or any part or [tarts thereof, knowing the same to have been stolen." etc.: Langmead was indicated and tried on two counts, one for stealing and the other for receiving, ami was found guilty of feloniously receiving: Pollock. ( . 15.. said (j». :'>:>1) : The distinction between the presumption as to felonious receiving and steal- ing i^ nol a matter of law. No doubt, upon the evidence, no other person than the prisoner appears distinctly to enter into the transaction, ami all that ap- pears is thai the prisoner was found very recently in possession of the stolen sheep. That prima facie is evidence of stealing rather than of receiving, hut in no case can it he said to he exclusively such, unless the party is found so recently in possession of stolen property, and under such circumtances as to exclude the probability of receiving; as where a party is stopped coming out of a room with a gold watch whirh lias been taken from the room; but if he has left the room so long as to render it probable that he may have received it from some one else, I hen it may he evidence either of stealing or of feloniously receiving. These decisions and the statutes affecting them are enough to illus- irate the distinction already mentioned between cases of that char- acter and the instant case. If those decisions can not he so distin- guished we are unable to follow them, but must rather adopt the rule of the cases hereafter cited. We can not think that the last- quoted portion of the charge here is sustainable under either count 2 or count 3 of the present indictment. The charge is broad and unqualified; it states as matter of law "that the possession of stolen property imputes knowledge in the possessor that it was and is* stolen " ; and the defendant is at once put upon his proofs to free himself of that presumption. It might be that the circumstances shown to have attended the possession of property involved in a given case, not to say the case in hand, would, if unexplained by defendant, naturally lead the jury to believe that he received the property with knowledge that it had been stolen; but to impute such knowledge as matter of law is a different proposition. The effect of this, as it seems to us, was to impose the burden upon defendant to prove his innocence in case the jury should find the goods had in fact been stolen. Defendant's possession, say, of the tin, was practically ad- J ill. I CS l ROM RAILROADS. 25 mined: and, if it was once found that this tin was in fad stolen, the effeci of the charge was bo treal such admission, coupled with such finding, as sufficient to impute " knowledge in tin- po ir thai it nras and is stolen" property; and this was calculated to prejudice the rights of the accused. In Durant v. People, 13 Mich., 351, Durant was charged with reviving stolen good.-, •• knowing the same to have been feloniously stolen," etc.; and. upon a ruling of the court below excluding testimony tending to -how possession but without guilty knowledge. Christ ianey. J., speaking for a unanimous court, said (13 Mich.. 352) : The defendant was n<>r charged with larcenj of the goods, and her pos sion could nol be used as evidence tending to show that she had stolen them. Ber possession must be regarded as Innocent, unless shown to have t d re- ceived with knowledge thai they were stolen, or under circumstances which would satisf> the .jury thai she believed them to be stolen. Possession itself, without evidence tending to show such guilty knowledge, could have oo tend- encj i" establish her guilt. She did not, in fact, undertake n> deny the posses sion, but admitting it. claimed she had come to the posse sion innocently, withoul notice thai the goods were stolen, [u the aspecl tl e case had assumed when this question was proposed to the witness, guilty knowledge was prac ticallj the only question in dispute. Bui independent of the particular aspecl the case had assumed upon the evidence, we think, in all prosecutions for this offense, ii must upon principle be competent alike both for the prosecution and the defense to show what were the actual circumstances, the arrangement or understanding under which the goods were received by the defendant, whether the effeci shall be to establish guill or innocence. This is the res gestae, the very essence of the inquiry. See Stah \. Richmond, L86 Mo.. 71. 82, 85, 84 S. \\\. 880; Stat* \. Weinberg;24:5 Mo., 564, 571, 150 S. W., L069; Peoplt v. Weisen berger, 73 A.pp. Div., 428, t29, 77 X. V. Supp., 71: People v. Wilson, l.M \. Y.. 403. 406. 45 X. E., 862; Stah v. Freedman (Del. Ct. of Gen. Sess.), 3 Pennewill, 403, 405, 53 At!.. 356; StaU v, Janks, 26 Idaho. 567, :>77. 578, 144 Pac, 77!>: Casthberry v. State, 35 Tex. Cr. K.. 382, 383, 33 S. W., 875, 60 Am. St. Rep., 53; Territory \ Olaypoolc& Lueras, 11 N. M., 568, 577, 71 Pac, L63; Slater \. United States, I Old. Cr., 275, 98 Pac, 110, 113; Coopei v. State, 29 Tex. App.. 8, L9, 13 S. W., 1011,25 Am. Si. Rep.. 712; 2 Wharton ? s Crim. Ev. ( LOth Ed.), see. 760. We conclude that the errors pointed out in the charge were preju- dicial; and an order will accordingly be entered reversing the judg- meni and remanding the case for new trial. FORMS OF INDICTMENT. In Heard \. United States, and Dunn v. Same, 228 Vv<\.. 503 - C. C. A.), a case was presented for review in which Heard was con- victed of stealing from a railroad car certain packages of money. being interstate shipments by express (act Feb. L3, 1913, chap. 50. 26 THEFTS FROM RAILROADS. 37 Stat., 670), and Dunn of aiding and abetting him, and both of a conspiracy with the express messenger to commit the thefts (act Mar. I, 1909. chap. 321, Penal Code, sec. 37, 35 Stat., 1096). The conviction in these cases was reversed upon questions of law not affecting the interpretation or application of the statutes referred to. In the Transcript of Record of the Dunn and Heard cases just referred to. the forms of indictment used are as follows: In (he District Court of the United States, within and for the district and division aforesaid, at the term thereof, A. D. The grand jurors of the United Stales, impaneled, sworn and charged at the term aforesaid, of the court aforesaid, on their oatli present, thai heretofore, to wit: on the day of , A. D. , one , late of said district and division, on the line of the , a common carrier, between the cities of , in the county of , and , in the county of , in the district and division aforesaid, and within the jurisdiction of this court, did then and there knowingly, willfully, unlawfully, and feloniously take, steal, and carry away from a certain car, said car being numbered , and being then and there a part of a train of cars engaged in interstate com- merce, three certain sealed envelopes and packages, in the custody and posses- sion of the United States Express Company, and described as follows: one envelope and package consigned by the ticket agent of the said Company, at , in the district and division aforesaid, and addressed to the Merchants Laclede National 15ank of St. Louis, in the State of , said envelope and package then and there containing money in the sum of five hundred and forty- eight dollars and fifty cents ($548.50), lawful money of the United States, money and property of the Company, a more particular description of which said money is to these grand jurors unknown; also one package and envelope consigned by the freight agent of the said Company, at said , addressed to the Bank of , in the State of , said envelope and package then and there containing money in the sum of three hundred and twenty-four dollars (.$324) lawful money of the United States, money and property of the Company, a more particular description of which said money is to these grand jurors unknown ; also one package and envelope, consigned by the , of , at , in the district and division aforesaid, addressed to , of , at , in the State of , said envelope and package then and there containing money in the sum of three bundled and twelve dollars and nineteen cents ($312.19), lawful money of the United States, money and property of the Company, a more particular description of which said money is to these grand jurors unknown ; said packages and envelopes above described, and each of them, then and there being and constituting interstate shipments of express, as above described; and so the said defendant did then and there take, steal, and carry away from and out of the combination mail and express car aforesaid, the envelopes and packages constituting the interstate shipments of express as aforesaid, money and property of the said railway and express company afore- said, with intent then and there on the part of him the, the said , to convert the same to his own use and benefit; and the grand jurors aforesaid, on their oath aforesaid, do further present, that heretofore, to wit, on the first day of , A. D. , one at , in the district and division aforesaid, and within the jurisdiction of this court, before the felony and crime aforesaid, was committed, in the manner and form as aforesaid, did" then and THEFTS FROM RAILROADS. 27 there knowingly, willfully, unlawfully and feloniously counsel, aid, abet, and procure, the said , t<> do and commH the said felony and crime In manner and form as aforesaid, and the grand jurors aforesaid, on their oath aforesaid, do further present thai , at , in the districl and division aforesaid, and within the jurisdiction <>f I his court, before the said felony and 'Time was c mitted in the manner and form as aforesaid, t.> wit : on and aft< r t lie day of , A. I •. , at said , in the district and division afore- said, then ami there well knowing the said , to have done ami committed the felony and crime in the manner and form as aforesaid, then and there did feloniously receive, harbor, and maintain him the said , and did then and there knowingly, willfully, unlawfully, and feloniously conceal the commission Of the said felony i mitted in the manner ami form as aforesaid, contrary to the form of the statute in such case made and provided and againsl tin- peace and dignity of the United States. SECOND COl'.N I. [Section 37 of the Revised Criminal Code of the United States. 1 And the grand jurors aforesaid, on their oath aforesaid, do further present that heretofore, to wit, on the day of , A. D. , one and one , in the first count of this indictment mentioned, at , in the district and division in the first count hereof mentioned, ami within the juris- diction of this limit, did then and there commit the crime of conspiracy, ami did amongsl themselves, and with one , combine, conspire, confederate, ami agree together to take, steal, and carry away from and out of the com- bination mail and express car in the first count of this indictment mentioned ami described, the envelopes and packages mentioned and described in the first count hereof; and the said and the said ■ afterwards, to wit. on the day of , A. D. , within the district and division aforesaid, and within the jurisdiction of this court, and. at and between the points in the first count hereof mentioned, in pursuance of and in accordance with the said unlawful conspiracy, combination, confederacy, and agreement amongsl themselves, had as aforesaid, did then and there knowingly, willfully, unlaw- fully, and feloniously steal, take, and carry away from and out of the combi- nation mail and express car in the first count of this indictment mentioned and described, witli intent then and there to convert to bis own use and benefil and to the use and benefit of each of them the three (3) envelopes End packages in the first count hereof mentioned and described, each of the said envelopes and packages then and there being interstate shipments of express, as in said first count mentioned and described, contrary to the form of the statute in such case made and provided and againsl the peace and dignity of the United States. In the case of Greenburg ct al. v. United States, now pending on writ of error in the United States Circuit Court of Appeals for the Seventh Circuit. No. -2563, the following were forms followed in the indictment : The grand jurors of the United States. Impaneled, sworn [Breaking charged at the term aforesaid, of the court aforesaid, on their oaths present that and and each of them, on, to wit : the day of , in the year of our Lord one thousand nine hundred and , in the county of , in the State 28 I II Kl IS I ••!■;< i. M RAILROADS. of , in the District aforesaid, and within the juris- diction of said court, did unlawfully and feloniously break the seal of a certain railroad car then and there bearing the name and number to wit: - which said ear then and there con- tained an interstate shipment ol freight, to wi1 : a large quan- tity <>f - - then and there consigned and iii transit from . in the Slate of - to - .and- • in t lie Si a le of - and and — , in the Slate of - . and - in the Slate of - — , which said railroad car was then and, there in the possession of the Company, a corporal ion and common carrier then and there being, with the unlawful and feloi fc>us intent then and there in them the said - and and each of them, to then and there commit larceny in said ear. con- trary to the form of the statute in such case made and provided, and againsl the peace and dignity of the United Stales. I Unlawfully An ,i n,,, grand jurors aforesaid, upon their oaths aforesaid, do further present thai and — . and each of them, on. to wil : the - day of - — — , in the year of our Lord one thousand aine hundred and . in the county of , in the state of — , in the - D'.stricl aforesaid and within the jurisdiction of said conn, did unlawfully and feloniously enter a certain car then and I here bearing the name and number, to wit: , which said car then and. there contained an inter- state shipment of freight, to wit: a large quantity of , then and there consigned and in transit from , in the State of — to , and , in the State of . and — and . in the Slate of . and ■ — in the State of — . and which said railroad car was then and there in the possession of the - - Company, a corporal ion and common car- rier then and there being, with the unlawful and felonious intent then and there in them the said - . and - — , and each of them, to then and there commit larceny in said car. contrai'3 to the form of the statute in such case made and provided, and against the peace and dignity of the United Stales. [Larceny ^ M( | t]l(1 grand jurors aforesaid, upon their oaths aforesaid, do from car. J further present that and ■ — . and each of them on to wit: the - day of , in the year of our Lord one thousand nine hundred and . in the County of . in the State of , in the district aforesaid, and within the jurisdiction of said court, did unlawfully and feloniously take. steal, and carry away from a certain railroad car then and there bearing the name and number, to wit: a large quantity of to wit: "jises of , then and there of the value of, to Wit: dollars per case, and then and there con- tained in said railroad car, with the unlawful and felonious in- tern then and there in them the said — — — and , and each of them, to converl to their own use the said . which said then and (here constituted a pari of an interstate shipment of freighl then and there consigned and in transit from , in the Stat ' — to and in the Slate of , and and , in the Slate of , and in the State of — — , which said railroad car and the said were then and l here in the possession of the - Company, a corporation and common carrier, then and there THKFTS FROM RAH KOADS. 2^ being, contrary to the form of the statute in such cast- made and provided, and against the peace and dignity of the Qnlted States And the grand jurors aforesaid, upon their oaths aforesaid, do [Unlawfully •, > i ■■ . i ii;iviriK P OB8 M further present thai , and . and each Ol them, on. iion (if prop . !,, wit: the - day of , in the year of our Lord one «** / a ' n 'j lea thousand nine hundred and , In the County of . in Hi,. Stat.- Of . in the district aforesaid and within the jurisdiction of said court, did unlawfullj and feloniously have in i heir possession a la rge quanl ity of , to wit: cases of , then and there of the value of, to wit: dollars, which said - had lately there!.. fore been unlawfully and feloniously stolen, taken, and carried away from a certain railroad car In the county of , In the State of . afore- said, and Which said railroad car then and there bore the name and number to wit : which said then and there con- stituted a pari of an Interstate shipment of freight then and there consigned and in transit from — — — , in the stale of ■, to and , in the State of , and .- nd , in the State of , and , in the Slate uf , and which said and railroad car. at the time the said were stolen as aforesaid, were then and there in the .—•--ion of the Company, a corporation and common carrier then and there being, tbe> the -aid , and , and each of them, then and there at the time of so having the >; ihI jn (heir possession as aforesaid, then and there well (mowing the said to have been stolen as aforesaid, con- nary to the term of the statute in such case made and provided, and against the peace and dignity of the United State-. In the case of United States v. Heyne, United State- Distrid Court. Northern District of Illinois. Eastern Division, there was a convic- tion of the defendant under section on on the twenty-eighth day of December, in the year nine- teen hundred and seventeen, of each and every system of transportation and the appurtenances thereof located wholly or in part within the boundaries of the continental United States, and consisting of railroads, and owned or con- trolled systems of coastwise and inland transportation engaged in general trans- portation, whether operated by steam or by electric power. Including all terminals, terminal companies and terminal associations, sleeping and parlor cars, private cars and private car lines, ('levators, warehouses, telegraph and telephone lines, and all other equipment and appurtenances commonly used upon or operated as a part of such rail or combined rail and water systems of transportat ion. And the grand jurors aforesaid, upon their oath aforesaid, do further present that the Illinois Central Railroad Company, a corporation common carrier organized and existing under and by virtue of the laws of the State of Illinois, was, on, to wit, the twenty-eighth day of December, in the year nineteen hun- dred and seventeen, the owner of a system of transportation and the appurte- nances thereof, including telegraph and telephone lines, located wholly within the boundaries of the continental United States, and that on, to wit, the said twenty-eighth day of December, in the year nineteen hundred and seventeen, the possession and control of the said system of transportation and the appurte- nances thereof, including telegraph and telephone lines, were transferred from the said Illinois Central Railroad Company, a corporation common carrier as aforesaid, to the President of the United States of America through the Secre- tary of War for said United States of America. And the grand jurors aforesaid, upon their oath aforesaid, do further present that on, to wit, the second day of February, in the year nineteen hundred and eighteen, at Chicago, in the State of Illinois, and in the division and district aforesaid, one Herman A. Heyne did then and there unlawfully, willfully, and maliciously injure certain property, to wit, a large number of telegraph wires then and there located upon the premises of the said Illinois Central Railroad Company situated in and about Kedzie Avenue and the right of way of the said Illinois Central Railroad Company, in the said city of Chicago, by cutting and severing the said telegraph wires, which said telegraph wires then and there constituted part of a system of telegraph then and there operated and controlled by the United States of America as aforesaid; against the peace and dignity of the said United States, and contrary to the form of the statute of the same in such case made and provided. 2. And the grand jurors aforesaid, upon their oath aforesaid, do further pre- sent that on, to wit, the twenty-sixth day of December, in the year nineteen hundred and seventeen, the President of the United States of America, through the Secretary of War for said United States of America, did issue and cause to be issued a certain proclamation, the nature and character of which said proclamation as set forth in said first count, is hereby incorporated and made a part of this count. And the grand jurors aforesaid, upon their oath aforesaid, do further present that the said Illinois Central Railroad Company, a corporation common car- rier organized and existing under and by virtue of the laws of the State of Illinois, was, on, to wit, the twenty-eighth day of December, in the year nine- teen hundred and seventeen, the owner of a system of transportation and the THEFTS FROM RAILROADS. 31 appurtenances thereof, Including telegraph and telephone Lines, located wholly within the boundaries of the continental United States, and that on, to wit, the said twenty-eighth day of December, In the year nineteen hundred and seventeen, the possession and control of the said system of transportation and the appurtenances thereof, Including telegraph and telephone lines, were transferred from the said Illinois Central Railroad Company, a corporation common carrier as aforesaid, to the President of the United States of America through the Secretary of War for Bald United stales of America. And the grand jurors aforesaid, upon their oath aforesaid, do further present that on. to wit, the second day Of Fel ruary, in the year nineteen hundred and eighteen, al Chicago, in the state ..f Illinois, and in the division and district aforesaid, one Herman A. Heyne did then and there unlawfully, willfully, and maliciously Interfere with the working and use of certain telegraph lines, to wit, a large number of telegraph wires then and there located upon the premises of the said Illinois Central Railroad Company situated in ami about Kedzie Avenue and the right of way of the said Illinois Central Railroad Company, in the said city of Chicago, by cutting ami severing the said telegraph lines, which said telegraph lines then and there constituted part of a system of telegraph then and there operated and controlled by the United States of America as aforesaid; against the peace and dignity of the said United States, and contrary to the form of the statute of the same in such case made and provided. :;. And the grand jurors aforesaid, upon their oath aforesaid, do further pre- sent that on. to wit, the twenty-sixth day of December, in the year nineteen hundred and seventeen, the President of the United States of America, through the Secretary of War for said United States of America, did issue and cause to be issued a certain proclamation, the nature and character of which said procla- mation as set forth in said first count is hereby incorporated and made a part of this could. And the grand jurors aforesaid, upon their oath aforesaid, do further present that the said Illinois Central Railroad Company, a corporation common carrier organized and existing under and by virtue of the laws of the State of Illinois, was. on. to wit, the twenty-eighth day of December, in the year nineteen hundred and seventeen, the owner of a system of transportation and the appurtenances thereof, including telegraph and telephone lines, located wholly within the boundaries of the continental United States, and that on, to wit, the said twenty- eighth day of December, in the year nineteen hundred and seventeen, the pos- session and control of the said system of transportation and the appurtenances thereof, including telegraph and telephone lines, were transferred from the said Illinois Central Railroad Company, a corporation common carrier as aforesaid, to the President of the United States of America through the Secretary of War for said United States of America. And the grand jurors aforesaid, upon their oath aforesaid, do further present that on, to wit, the second day of February, in the year nineteen hundred ami eighteen, at Chicago in the State of Illinois, and in the division and district aforesaid, one Herman A. Heyne did then and there unlawfully, willfully and maliciously obstruct, hinder and delay the transmission of communications over certain telegraph lines located upon the premises of the said Illinois Central Railroad Company situated in and about Kedzie Avenue and the right of way of the said Illinois Central Railroad Company, in the said city of Chicago. In- cutting and severing said telegraph lines, which said telegraph lines then and there constituted part of a system of telegraph then and there operated and controlled by the United States of America as aforesaid; against the peace and dignity of the said United States, and contrary to the form of the statute of the same in such case made and provided. Unit v