United States v. Barber

289 F. 523, 1923 U.S. Dist. LEXIS 1611

• Court: District Court, S.D. Florida
• Decided: May 15, 1923
• Docket: No. 1916
• Status: Published

Opinion

CAUL,, District Judge.

The statute under which this indictment was found is as follows:

“Whoever * * * shall break into, steal, take, carry away * * * any of the contents of such baggage * * * or have in his possession * * * any article therefrom * * * knowing .the same to have been stolen.” Section 8603, Compiled Statutes. • . ; ;

The first count charges the theft from the baggage of a certaiii person moving in interstate commerce of a certain article. The Second count charges the possession of this article knowing it to hkve been stolen. The third count alleges the theft of a certain other article from the baggage of another person moving in interstate commerce, and the fourth count charges the possession of this last-named article knowing it to have been stolen.

The demurrer, motion to quash, and motion to strike are each addressed to the indictment on the idea that the indictment cannot contain these separate charges of the violation of the act, although contained in different counts. This I do not understand to be the law.

Again, it seems to be contended that the first and third counts are multifarious, charging more than one offense. The words used in these counts are “break into, steal, take, and carry away certain goods.” While the statute, uses the words “steal,” “take,” and “carry away,” separated by a comma, these words denote a larceny when preceded by the word “feloniously,” and are uniformly used in common-law indictment, and negative any idea of consent by the owner or bailee of such articles, and charge but a larceny of the particular article.

In indictments charging a violation of this section it is not necessary to allege value. The second and fourth counts charge the possession with the guilty knowledge. The motion to compel an election, even though it were well taken, comes too soon.

The motion to return the articles alleged to have been stolen and possessed, together with other articles seized by the state officers under a state process, and turned over to employees of the railroad, is without merit. In the first place, no officer of the United States had any hand in the seizure, and, although the process might have been faulty (which I do not decide), this is not the forum to compel state officers to perform their duty in matters of this kind.

'Again, under the decision of the United States Supreme Court, the fact that state officers may have made an illegal search and seizure does not make the evidence thereby obtained illegal, if otherwise competent. Burdeau v. McDowell, 256 U. S. 465, 41 Sup. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159.