Bollenbach v. United States

Mr. Justice Black,

dissenting.

Tot v. United States, 319 U. S. 463 , held that the mere possession of a pistol coupled with conviction for a prior *616 crime was not evidence proving that the pistol had been shipped or transported in interstate commerce. I agree with the government’s contention that the trial court’s charge in this case does not conflict with the Tot holding. For the trial court did not charge the jury that interstate transportation of the stolen securities could be inferred from their mere possession in New York. In fact, the undisputed evidence showed that the securities, stolen in Minnesota, turned up in the petitioner’s possession in New York very shortly after the theft. No evidence was offered to explain this possession of the stolen goods. Under these circumstances the trial judge rightly charged the jury that the unexplained possession of stolen property shortly after the theft was sufficient to justify a finding that the petitioner not only knew that the bonds were stolen but that he was the thief. Such seems to have been the established rule of law since time immemorial. 1

Never until today has this Court cast any doubt on the existence or soundness of the rule. In fact it has recognized or expressly approved it as proper in cases involving larceny, Dunlop v. United States, 165 U. S. 486, 502 ; burglary, McNamara v. Henkel, 226 U. S. 520, 524-525 ; arson, Wilson v. United States, 162 U. S. 613, 617, 619, 620 ; and even murder, ibid. And in the Wilson case, supra, this Court approved a charge by the trial court using substantially the same language as to “presumption,” which the trial court here used. 2 There is no reason which I can *617 conceive, and the Court offers none, why the sensible and long-established rule should be appropriate in all kinds of cases except the one before us. Certainly evidence of the theft of the bonds and their transport in interstate commerce with knowledge of the theft, was relevant on both counts of the indictment, the first charging the theft and transportation, and the second charging conspiracy to commit the crime. And these relevant facts were capable of proof by circumstantial evidence to the same extent as to each count. The “unexplained possession” rule is in substance a circumstantial evidence rule. The experience of ages has justly given this particular type of circumstantial evidence a high value. In my opinion the trial court’s charge insofar as it stated that unexplained possession of the stolen bonds raised a “presumption” that *618 petitioner was the thief, was a correct statement of law under our former decisions. The Court’s opinion does not explicitly repudiate this part of the trial judge’s instruction but it seems to me that such repudiation is implicit in the Court’s reasoning.

There is some indication in the Court’s opinion that it thought the entire answer to the jury’s question erroneous because it was misleading. The only reason, I can imagine, why the Court’s answer, stating this well-established rule, could be thought misleading, is that the answer was in response to a question on the conspiracy count. Thus the Court may be saying that the jury might have believed from the trial court’s instructions that unexplained possession is not only proof that petitioner was the thief but also is in and of itself proof that he was a conspirator. In view of the fact that the judge previously fully instructed the jury on conspiracy, I do not think it either possible or probable that the jury was misled in the way indicated. But my objection is chiefly to the Court’s repudiation, either partial, or complete, of a rule which permits courts and juries to draw perfectly justifiable inferences from proven facts.

Nor do I think the trial judge was wrong in instructing the jury that the unexplained possession in New York of the securities recently stolen in Minnesota justified an inference that the petitioner had transported them in interstate commerce. If this possession in New York justified an inference that he had stolen the securities in Minnesota, I fail to see why it does not also justify the inference that he carried them to New York. Can it be said that there is a presumption that he stole them in Minnesota and then passed out of the picture while the stolen goods were carried to New York, and that the jury was compelled to attribute his possession in New York to something as indefinite as an “Act of God or the public enemy” ? The very presumption of theft has to carry with it the presumption of transportation. Thieves do not remain at the scene of their *619 crime. The classical definition of larceny contains the phrase “a felonious taking and carrying away.”

The Bill of Rights is improperly invoked to support the Court’s holding in this case. It contemplates that a defendant shall have a fair trial, but it does not command that juries shall be denied the right to draw the kind of inferences from admitted facts that all people of reasonable understanding would draw. I assume that if these bonds had been stolen in Minneapolis, Minnesota, at 6 A. M., and this petitioner had turned up with them just outside the New York airport at 12 o’clock noon of the same day, a reasonable person could not only infer that he had stolen them, but also that he had transported them. The only difference between drawing an inference of transportation in that case and the one before us is that the inference of transportation here might not be quite so overpowering. But it is none the less a reasonable one.

The trial judge’s oral charge to the jury was clear, fair, correct, and unchallenged. I disagree with the Court’s censure of his additional instructions. 3 The jury’s verdict, given after a fair trial, was supported, if not compelled, by the evidence. It is, in my judgment, a disservice to the administration of criminal law to reverse this case.

See the cases collected in notes on Hunt v. Commonwealth, 70 Am. Dec. 443, 447-452 ; State v. Drew, 101 Am. St. Rep. 474 , 481-524.

The court’s charge here condemned was that unexplained possession “raised a presumption.” It may be, although I am not sure, that the condemnation rests on the use of the word “presumption” instead of “inference.” And it is true that fine-spun refinements have been invented in efforts to distinguish “presumptions” from “infer- *617 enees,” cf. New York Life Ins. Co. v. Gamer, 303 U. S. 161, 175-177 . But I am sure that this jury was not familiar with the dialectics which sought without success to deliver these metaphysical distinctions from foetal darkness. And the notes already cited, as well as many cases, have shown that no such practical distinction exists. See e. g. United States v. Di Carlo, 64 F. 2d 15, 17 ; United States v. Seeman, 115 F. 2d 371, 374 . That the trial judge treated a “presumption” as an inference, just as any juror would, is shown by an earlier part of his charge as follows: “It is the law that the unexplained possession of stolen property shortly after the theft is sufficient to justify the conclusion by a jury of knowledge by the possessor that the property was stolen.” And it is interesting to note that this Court said in the Wilson case, supra, at 619-620, that “In Rickman’s case, 2 East P. C. 1035, cited, it was held that on an indictment for arson, proof that property was in the house at the time it was burned, and was soon afterwards found in the possession of the prisoner, raises a probable presumption that he was present and concerned in the offence; and in Rex v. Biggies, (Wills Cir. Ev. *53,) that there is a like presumption in the case of murder accompanied by robbery. Proof that defendant had in his possession, soon after, articles apparently taken from the deceased at the time of his death is always admissible, and the fact, with its legitimate inference, is to be considered by the jury along with the other facts in the case in arriving at their verdict.” (Italics supplied.)

This Court reads the trial judge’s charge to mean that Bollenbach was “guilty of a conspiracy to transport stolen notes if he joined in their disposal after the transportation had ended.” The trial judge actually charged the jury thus: “If the participation of this defendant in this was subsequent, that is, that he did not know that they were transported, that is, if he did not transport them or cause them to be transported himself, of course there would be no offense. That is, if the bonds arrived in New York and he had nothing to do with transporting or causing them to be transported there would be no offense.” Later the jury asked the judge this question: “If the defendant were aware that the bonds which he aided in disposing of were stolen does that knowledge make him guilty on the second count?” The judge’s reply so far as relevant to this particular question was: “Of course if it occurred afterwards it would not make him guilty . . .” Not one word and not one intimation have I been able to discover in the instructions to the jury to the effect that Bollenbach could be convicted if he had done nó more than join in disposal of the bonds after their transportation had ended.