NAKUTIN v. UNITED STATES, 8 F.2d 491

PAGE, Circuit Judge. Plaintiff in error (called defendant) was convicted of having possession of “Onyx” and “Concordia” hosiery, parts of two interstate shipments, knowing it to have been stolen. The “Onyx” and “Concordia” hosiery was found in defendant’s place of business by police officers and others looking, under a search warrant, for “As You Like It” hosiery, which was no part of an interstate shipment, nor was it in any way related to the hosiery in question here.

A witness, present when the search was made, was, over objection, permitted by the court to testify that he was manager for Beatum & Co., whose place had been robbed, that he had sworn out and signed the search warrant, and that he and the officers went to defendant’s place of business in search of, and found, “As You Like It” hosiery which had been stolen. There was no error in the admission of that evidence. Walsh v. United States, 174 F. 615, 98 C. C. A. 461; Bottomley v. United States, 3 Fed. Cas. 968, No. 1,688; Lincoln v. Claflin, 7 Wall. 132, 138, 19 L. Ed. 106; King v.

Wylie, 4 Bosanquet & P. 91, 92; Irving et al. v. Motly, 7 Bingham, 543, 548; Sapir v. United States, 174 F. 219, 221, 98 C. C. A. 227; N. Y. Mutual Life Ins. Co. v. Armstrong, 117 U. S. 591, 599, 6 S. Ct. 877, 29 L. Ed. 997; Castle v. Bullard, 64 U. S. (23 How.) 172, 187, 16 L. Ed. 424. It should be noted that the cases state an exception to the general rule that evidence of other transactions is not admissible. The only other objection urged is that there was no evidence to show that the hosiery was stolen, or that defendant knew it was stolen.

The evidence showed a shipment of “Concordia” hosiery from Philadelphia to Bullocks, Incorporated, a department store in Los Angeles, Cal., on June 27,1924, and that on their arrival, July 13, 1924, one ease was missing. Part of that shipment was positively identified in defendant’s possession on July 10th, three days before the car carrying the shipment arrived in Los Angeles.

As to defendant’s knowledge that the hosiery was stolen, there was evidence before the jury showing contradictory statements by defendant as to where he got the hosiery, and of attempts at concealment of parts of the hosiery; that he bought it for one-half the wholesale price, and sold it at retail for a price that yielded him a good profit, and yet that was far below the wholesale price; that, he had large quantities of new goods in the original packages from three different, but recent, thefts. Prom this and other evidence there was clearly a question for the jury. The judgment is affirmed.