Summary
In United States v. Vasilaky, 168 F.2d 191 (2d Cir. 1948), the Second Circuit reviewed a jury charge in which, after stating three times in the course of the instruction that guilt must be proved "beyond a reasonable doubt," the trial judge summarized: "If the Government in this case has failed to establish [its ownership of the property allegedly stolen] by a fair preponderance of the evidence, then of course that ends the case, and you will direct a verdict for the defendants."
Summary of this case from United States v. CarrodeguasOpinion
No. 276, Docket 20995.
May 27, 1948.
Appeal from the District Court of the United States, for the Southern District of New York.
Thomas Albert Fritz and others, were convicted on a charge of having stolen or embezzled certain government owned property from the S.S. Marine Carp, a vessel owned by the United States government, and the named defendant appeals.
Affirmed.
Fritz appeals from his conviction on a charge of having, with two co-defendants, stolen or embezzled certain government-owned property from the S.S. Marine Carp, a vessel owned by the United States government, while the vessel was at sea. The three defendants were Vasilaky, chief steward of the Marine Carp, Fritz, a second steward, and Petratos, a public-room porter, who pleaded guilty and testified as a government witness. The property allegedly stolen was 43 packages containing pillow-cases, chinaware, white paint, bed-spreads, bath-towels, green paint, safety-matches, face-soap, table-cloths, scrubbing-brushes, blankets, work-jackets, and mattress-covers, of a total value of about $1,600.
According to the testimony of government witnesses, during December, 1946, while the Marine Carp was at sea, Vasilaky told Petratos that he had on hand some supplies, purchased by him from the War Assets Administration, which he wished to sell, and asked Petratos to get some buyers from among the passengers with whom he had contact. Petratos brought two passengers to Vasilaky's office. These passengers went with Vasilaky and appellant to the ship's store-room where they viewed the supplies, selected what they wanted, returned, and gave orders to Vasilaky. Later, on Vasilaky's instructions, Petratos and appellant went to the store-room and together packed the selected supplies in cartons, addressed labels for the packages, and carried the packages to Vasilaky's office. The passengers paid for the goods, and were told that the goods would be sent on to them in Greece. As the packages were being unloaded in Greece, they were detected by shipping agents, and sent back to New York. Here they were examined by F.B.I. agents and the commissary superintendent of the American Export Line, which was operating the Marine Carp. The commissary superintendent examined the contents of the packages; he then went on board the Marine Carp and examined the supplies in the ship's store-room; he found that some of the latter were "identical to the merchandise in the packages." The government also introduced testimony of the purchasing agent of the American Export Line to the effect that all property purchased for the vessel was purchased by the Line as agents, but he had no knowledge concerning the particular property in issue.
Both Vasilaky and appellant took the stand to testify in their own behalf, and denied having been involved in, or having had any knowledge of, the above transaction. The jury found the defendants guilty nevertheless, and Fritz has brought this appeal.
Irving Mendelson, of New York City, for appellant.
John F.X. McGohey, of New York City (Bruno Schachmer, of New York City, of counsel), for appellee.
Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.
1. We think the evidence sufficient to sustain the verdict. In particular, there was testimony that the United States owned all material aboard the vessel, including that in the store-room. There was also evidence from which the jury could reasonably infer (1) that the goods in question were taken from the store-room and constituted part of the ship's supplies, and (2) that appellant wilfully and knowingly stole some of those supplies.
2. Appellant, whose trial counsel stated, at the end of the judge's charge, that "there is no exception or request to charge," now complains of two portions of it.
(a) The judge said: "You have heard the testimony of Petratos and, of course, he is an accomplice in this case and pleaded guilty. Under our law one can be convicted by the testimony of an accomplice alone, but you should examine carefully the testimony of any accomplice so far as you should determine whether or not he is telling the truth and the full facts regarding the circumstances that may have taken place." Appellant argues: "In holding as a matter of law that Fritz was an `accomplice' of Petratos, the Court had taken from the jury the question of fact as to whether there was a theft in which Fritz participated in with Petratos. Fritz could only be an accomplice of Petratos after the jury resolved the issue of fact and found that there was a theft in which Fritz participated with Petratos. * * * All these instructions to the jury by the Court were tantamount to a holding as a matter of law that Fritz was guilty because Petratos, an accomplice and one who had participated with Fritz in the theft, had pleaded guilty and had testified as to the guilt of Fritz, and that Fritz could be convicted by the testimony of the accomplice Petratos." We cannot agree. A trial judge, in giving such a charge about the testimony of accomplices, might do well to qualify his remarks by stating that his use of the word "accomplice" is not intended to imply any guilt in other defendants. But, as defendant's counsel affirmatively acquiesced in the charge, what we said in United States v. Monroe, 2 Cir., 164 F.2d 471, 474, applies here.
(b) After stating in his charge three times that the government must prove the crime as charged "beyond a reasonable doubt," the judge said: "Summarizing, therefore, again what I have probably already given you, you will have to determine whether or not the Government was the owner of any property which might have been sold and which is the subject of this testimony in this law-suit. If the Government in this case has failed to establish this by a fair preponderance of the evidence, then of course that ends this case, and you will return a verdict for the defendants. If the government has established that it is the owner of the property with which we are here concerned, then determine whether or not the government has established that the defendants Vasilaky and Fritz wrongfully and feloniously and intentionally stole this property and intentionally appropriated it to their own use and benefit with intent to deprive the government thereof." Subsequently the judge again referred to the "beyond-a-reasonable-doubt" rule. The single instance of the use of the phrase "by a fair preponderance of the evidence" was patently a slip-of-the-tongue mistake which the judge of course would have corrected, had defendant's counsel called his attention to it. We think that this single slip did not mislead the jury, and that, therefore, the error is not so egregious that we should note it despite the endorsement, given on behalf of defendant, of the entire charge.
Emphasis added.
Affirmed.