Moore and Friendly, Circuit Judges, and Bryan, District Judge.*fn* Friendly, Circuit Judge (concurring).
FREDERICK van PELT BRYAN, District Judge:
Felix Padilla has been convicted of the theft of two pairs of women's slacks valued at less than $100, part of an interstate freight shipment, in violation of 18 U.S.C. § 659, after trial before Judge Herlands without a jury in the Southern District of New York.*fn1 On this appeal from the judgment of conviction Padilla's sole contention is that he should not have been convicted because it was not proved at the trial that the slacks had been stolen or taken "from" the motortruck in which the interstate shipment was being carried as required under § 659.
Viewing the evidence in the light most favorable to the Government as we must, the following quite simple facts relevant to this contention can be deemed established by the record.
On December 9, 1964 Padilla was assigned as a helper on a motortruck opererated by City Carriers, Inc. engaged in the delivery of interstate freight shipments. During that day he described to Roosevelt Smith, the driver of the truck, a method by which he could remove the contents of cartons of one of the shippers, National Togs, without breaking them open, and indicated to Smith that he had previously stolen goods in that manner.
The next day the truck made several deliveries of interstate shipments and then was parked for lunch at 11th Avenue and 42nd Street. While the cartons in the body of the truck were being rearranged for afternoon delivery Smith saw Padilla trying to get his hand into a sealed National Togs carton. When he was unable to do so Padilla worked his way into a second carton and pulled out two pairs of women's slacks. He hid the slacks in the front of the body of the truck and placed several cartons on top of the carton from which he had taken them. This was done over Smith's protests and Padilla asked him to keep quiet about it.
Nevertheless Smith telephoned his boss, Bell, who arrived shortly with two F.B.I. agents. Smith and Padilla were in the front seat of the truck. Smith, who had keys to the back of the truck (which Padilla did not), unlocked the rear doors. Smith pointed out the carton which had been broken into and the place where the slacks were hidden. The agents took the slacks from their hiding place. Later Padilla was arrested and charged with the theft. There was evidence that after the arrest Padilla had offered inducements to Smith to persuade Smith not to testify against him.
Padilla took the stand in his own defense and denied taking the slacks or trying to persuade Smith not to testify.
Section 659 of Title 18, in relevant part, reads as follows:
"Whoever embezzles, steals, or unlawfully takes, carries away, or conceals, or by fraud or deception obtains from any railroad car, wagon, motortruck or other vehicle, or from any station, station house, platform or depot or from any steamboat, vessel, or wharf, or from any aircraft, air terminal, airport, aircraft terminal or air navigation facility with intent to convert to his own use any goods or chattels moving as or which are a part of or which constitute an interstate or foreign shipment of freight * * *."
The information charged that Padilla "with intent to convert to his own use, did embezzle, steal, take and carry away from a City Carriers, Inc. Mortortruck [sic] * * * two pairs of women's slacks, which were moving as, were part of and constituted an interstate shipment of freight and express from New York, New York, to Chicago, Illinois," in violation of § 659.*fn2
Padilla contends that to establish the charged violation of § 659 it was necessary for the Government to show that he had physically removed the slacks from -- that is to say out of -- the truck in which they were being transported. His theory is that the phrase in § 659 "from any * * * motortruck" coming after the words "steals, or unlawfully takes" must be construed to require such proof before a crime can be said to have been committed. He therefore urges that since he had merely hidden the slacks taken from the carton in the body of the truck where they remained until the agents found them, and had at no time taken them out of the vehicle, proof of an essential element of the crime charged was lacking and he should have been acquitted.
We see no merit in this contention. We hold that a theft or unlawful taking under § 659 was complete when Padilla removed the slacks from the carton in the body of the truck and reduced them to his possession and control with the intent to convert them to his own use. Hiding the slacks in the front of the body of the truck after he had acquired dominion over them, with a view to disposing of them later, ...