# United States v. Kemble

> Court of Appeals for the Third Circuit · September 4, 1952 · 198 F.2d 889

URL: https://www.frixlaw.com/law-library/cases/9443420

## Case

- **Full name:** UNITED STATES v. KEMBLE Et Al.
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** September 4, 1952
- **Citations:** 198 F.2d 889; 30 L.R.R.M. (BNA) 2590; 1952 U.S. App. LEXIS 3774
- **Precedential status:** Published
- **Opinion:** Dissent by Staley
- **Judges:** McLaughlin, Staley, Biggs, Maris, Goodrich, Hastie
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9443420

## How later opinions describe it (automated extraction)

- applying § 6 to Hobbs Act extortion prosecution

## Opinion text

STALEY, Circuit Judge
(dissenting).
I concur in Judge McLAUGHLIN’S interpretation of the Hobbs Act. But I do not agree that defendants are entitled to a judgment of acquittal. On the basis of the record before us, I would reverse the judgments of conviction and grant both defendants a new trial.
The statute itself, viewed in the context of the criminal law generally, is clear. By resort to the apparent intent of Congress, the majority has injected into the Act a meaning which its language does not reasonably import. In so doing, they have cast aside the salutary rule that criminal statutes are to be strictly construed. See United States v. Resnick, 1936, 299 U.S. 207, 209 , 57 S.Ct. 126 , 81 L.Ed. 127 .
The crucial issue, as I see it, is whether the intent to seek employment, even though accompanied by violence or threats of violence, is the kind of criminal state of mind Congress intended to punish under the Hobbs Act. At the outset we are confronted with the obvious problem that the Act itself sets forth no statement as to any requisite mans rea. According to the bare words of the statute, anyone who obtains property from another by the wrongful use of force, violence or fear in such a way as to obstruct commerce has committed a violation of the Act and is subject to a maximum penalty of twenty years’ imprisonment. Apparently one would be guilty of a violation of the Act even if his only intent in wrongfully using force were to borrow property from another, so long as the act affected commerce. Suppose Kemble had demanded that Leonard lend him the truck for an hour so that Kemble could perform union duties. Would this have constituted a violation of the Hobbs Act?
The recent decision of the Supreme Court in Morissette v. United States, 1952, 342 U.S. 246 , 72 S.Ct. 240 , should control here. The defendant there was convicted of stealing government property in violation of Section 641 of the Criminal Code, 18 U.S.C. § 641 . That statute, as the one before us here, omitted any mention of a requisite criminal intent. In reversing the judgment of conviction, the Supreme Court held that where Congress uses terms already well defined in the common law and statutory law of the states, it will be presumed to have intended that the courts apply the commonly accepted requirements with respect to criminal intent. “Absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Morissette v. United States, supra, 342 U.S. at page 263 , 72 S.Ct. 250 . Since the Hobbs Act itself contains no indication that Congress intends to dispense with the traditional mens rea required in the crimes here involved, the command of the Morissette case seems clear. 8
The legislative history of the bill only highlights the fact that Congress did not intend to create new statutory crimes, but was using the terms robbery and extortion in their generally accepted meaning in the *898 criminal law. On this point Congressman Hohhs, author of the Act, had this to say: “They [the terms robbery and extortion] have been construed by the courts, not once, but a thousand times. The definitions in this bill are copied from the New York Code substantially.” 9 91 Cong.Rec. 11900 (1945).
All the larceny-type offenses have a basic similarity in that each involves a wrongful taking of property from another. Each is different, however, in that each concerns itself with a different method of taking. But all the larceny-type offenses require one additional ingredient — a criminal intent. See Morissette v. United States, supra, 342 U.S. at page 260-261 , 72 S.Ct. 240 . Larceny has been defined as the fraudulent taking and carrying away of a thing without claim of right, with the intention of converting it to a use of one other than the owner without his consent. 2 Wharton’s Criminal Law § 1097 (12th ed.) Robbery has been defined as a felonious and forcible taking of the property of another from his person or in his presence, against his will, by violence or by putting him in fear. 2 Wharton’s Criminal Law § 1083. At least one statute embodies the concept ..of a fraudulent taking in the definition of robbery. See Gai Code.Annot. § 26-2501. A corrupt intent has been considered a necessary ingredient of common law extortion. 10 La Tour v. Stone, 1939, 139 Fla. 681, 693-695 , 190 So. 704, 709-710 .
Since the definitions of extortion and robbery were modeled after the definitions in the New York Code, 11 decisions of the New York courts construing those statutes, at least prior to 1946, should be of especial significance. The New York cases make it clear that a felonious intent is a requisite of both robbery 12 and extortion. Thus, defendants were held not to have violated the New York extortion statute in collecting union dues because they lacked the requisite felonious intent. People v. Gassman, 1943, 182 Misc. 878, 885-886 , 45 N.Y.S.2d 709, 715 , affirmed 1944, 268 App. Div. 377 , 51 N.Y.S.2d 173, affirmed 1946, 295 N.Y. 254 , 66 N.E.2d 705 , 166 A.L.R. 154 .
The instant convictions should not be allowed to stand unless the record shows evidence of a felonious intent — a corrupt, dishonest intent — an intent to defraud. Do those who seek employment in good faith for a reasonable wage have the requisite mens rea? I think not. Unfortunately, there do not appear to be any direct precedents in criminal law generally. Early' English authorities are available, however, for the closely analogous situation of a forced sale of a commodity. Their view is that it is doubtful whether the offense of robbery is constituted where one, by threats of force, compels another to sell him goods in return for money equal in amount to the value of the goods. 4 Bl.Comm.' § 243 (Lewis’s ed.) ; 2 Wharton’s Criminal Law § 1085. The English cases draw the distinction between a forced sale for a consideration less than the value of the goods and such a sale for a fair and adequate consideration. While the former situation is clearly robbery 13 it is very much doubted whether the latter situation can be robbery. Hawkins, in his Pleas of the Crown, sums up this view in these words: “ * * * and there seems to be no such enormity in the intention of the wrongdoer as is implied in the notion' of felony.” 1 Hawkins, Pleas of the Crown, Ch. 34, § 14, p. 236 (7th ed.) See also Archbold’s Criminal Pleading 245 *899 (4th American ed. from the 7th London ed) . 14
The fact that physical violence was threatened should not be allowed to confuse the picture. If Congress had enacted legislation making the obstruction of commerce by violence or threats of violence a crime, these defendants would properly stand convicted. But no such offenses were ever made into law; and this court should not judicially legislate such offenses. The felonious taking of property from another by the use of violence or threats of violence, whether it be denominated extortion or robbery, 15 is really a compound felony, for the actor has offended both the person and property of the victim. See 77 C.J.S., Robbery, § 1; 46 Am.Jur., Robbery, § 3; Montsdoca v. State, 1922, 84 Fla. 82, 86 , 93 So. 157, 159 , 27 A.L.R. 1291 . If the actor offends only the person of his victim, a mere assault and battery has been committed. An offense against the property only would be a simple larceny. But if a defendant is to be convicted of the serious felony of engaging in violence or threats of violence in order to obtain the property of another, the prosecution should prove not only that the defendant had the intent to engage in violence or threats of violence, but also that he had a felonious intent with respect to the victim’s property — a corrupt intent — a fraudulent intent. When we cast aside this second requisite, as does the majority, we, in effect, amend the statute before us from one designed to punish extortion and robbery affecting commerce to one punishing violence or threats of violence affecting commerce. This task is obviously for Congress — not the courts.
The instant convictions should be reversed because the jury, if properly instructed, could most certainly have found that defendants’ only intent was to obtain gainful employment for a union man at a reasonable wage. The coercion of an employment relationship, unlike the defrauding of another of his property, is not an end that the law condemns.
The construction here adopted by the majority will have far-reaching effects on the rights of organized labor. A strike designed to force an employer to pay higher wages or employ additional workers is obviously designed to obtain money from the employer, even though the underlying intent can hardly be considered corrupt. Any sporadic outbreak of violence or threats of violence in connection with such strike might now be considered a violation of the Hobbs Act so long as interstate commerce is affected. A trifling assault thus -becomes a serious felony punishable by imprisonment up to twenty years.
Any strike to obtain ‘higher wages constitutes a use of force to obtain the property of another. Suppose an additional object of such a strike is to force the employer to bargain with a union when another labor organization has already been certified as the representative of the employees, thus rendering the strike an unfair labor practice. 61 Stat. 140 , 29 U.S.C.A. § 158 (b) (4) (C). Or suppose the strike is in violation of a collective bargaining agreement. These are both examples of strikes which are unlawful, at least in a certain sense. 16 Both might reasonably be termed attempts to obtain the property of another by the wrongful use of force. If such strikes *900 should affect interstate commerce, we would have complete offenses under the Hobbs Act.
I do not think that Congress intended such far-reaching effects under the Hobbs Act. Such results can be avoided if we interpret the Act as imposing on the prosecution the burden of proving a felonious, corrupt intent — an intent similar to that customarily required in all larceny-type offenses. Only such an interpretation is in harmony with the Morissette case.
I do not think the defendants are entitled to a judgment of acquittal for there was evidence from which a jury would have been warranted in finding that defendants did not in good faith seek employment. Whether the defendants did or did not seek employment was properly a question for the jury under proper instructions. The record reveals that Kemble approached Leonard at a time when the latter had only a few additional cartons to unload at R.C.A. Yet Kemble demanded that Leonard hire a man for a day at a wage of about $10. If Kem-ble made that demand knowing there were only a few minutes’ work left, the jury would most certainly have been warranted in finding that Kemble did not in good faith seek employment for a union man but was boldly attempting to levy tribute from a non-union employer.
If the jury finds that defendants were not seeking employment in good faith, the dispute was not a labor dispute and Section 6 of the Norris-LaGuardia Act is rendered inapplicable. See 47 Stat. 71 , 29 U.S.C.A. § 106 ; 47 Stat. 73 , 29 U.S.C.A. § 113 . A dispute between a would-be extortionist and his would-be victim can hardly be termed a labor dispute. With the stringent requirements of Section 6 removed, I think a jury would have been warranted in returning a verdict against defendant union.
I would reverse the convictions and grant defendants a new trial, for the trial court committed prejudicial and fundamental error in not instructing the jury as to the required mental state. Defendants’ requested instruction No. 6 was a fair statement of the law; either it or an equivalent should have been granted.
. In United States v. Kemble, 3 Cir., 1952, 197 F.2d 316 , this court followed the Morissette case in an opinion which emphasized the vital importance of an adequate charge on criminal intent. In the instant case no instruction whatever was given to the jury with respect to criminal intent.
. See also statement of Congressman Robsion.at 91 Cong.Rec. 11906 (1945).
. Extortion at common law bas been defined as an abuse of public justice which consists of the unlawful taking by an officer under color of his office any money or thing of value that is not due him, or more than is due him, or before it is due. 4 Bl.Gomm. § 141 (Lewis’s ed.)'
. See 91 Cong.Rec. 11900, 11906. The New York robbery statute is set forth at 39 McKinney’s Consol.Laws of N.Y.An-not. c. 40, Penal Law, § 2120; the extortion statute is at id. § 850.
. People v. Koerber, 1926, 244 N.Y. 147, 153-154 , 155 N.E. 79, 82 ; People v. Garry, 1933, 237 App.Div. 769 , 263 N.Y.S. 288 .
. Rex v. Simons, 2 East P.C. 712; Spenser’s Case, Ibid.; Rex v. Lovell, L.R. 8 Q.B.Div. 185, 44 L.T.N.S. 319 (1881).
. It is, of course, true that defendants were indicted for threatening to commit and committing physical violence in' furtherance of a plan to obstruct commerce by extortion — not robbery. The dividing line between robbery and extortion, how-ever, can be a very fine one. Where violence or the threat of violence is used, the question of consent or lack of consent becomes largely academic. In fact, at common law, the felonious taking of property from another by threats of physical violence was considered robbery, regardless of whether “consent” was obtained. See 2 Wharton’s Criminal Law § 1093 (12th ed.). Hence, regardless oí whether Kemble be charged with attempted extortion or attempted robbery, the weight of the English authorities cited above is not weakened.
, See Note 7, supra.
. No definition of “wrongful” is contained in the Hobbs Act. The Anti-Kaeketeering Act of 1934 contained the following definition: “Sec. 3. (a) As used in this Act the term ‘wrongful’ means in violation of the criminal laws of the United States or of any State or Territory.” 48 Stat. 979 , 980.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9443420. Public record. Not legal advice.