1. In a prosecution for conspiracy to commit an offense under
the National Stolen Property Act, an instruction to the jury that
the possession of property shortly after it had been stolen in
another State created a presumption that the possessor had
transported the property in interstate commerce constituted
reversible error. Pp. 326 U. S. 609
326 U. S. 611
326 U. S.
2. The manifest misdirection in the circumstances of this case
cannot be treated as a "technical error" not affecting the
defendant's substantial rights. P. 326 U. S.
3. Under the Criminal Code, one who aids or abets the commission
of a federal offense is punishable as a principal; the offense of
an accessory after the fact is distinct, and differently
punishable. P. 326 U. S.
4. A conviction ought not to rest on an equivocal direction to
the jury on a basic issue. P. 326 U. S.
5. Upon review of a conviction in the federal courts, the
question is not whether guilt may be spelt out of the record, but
whether guilt has been found by the jury according to the procedure
and standards appropriate for criminal trials in the federal
courts. P. 326 U. S.
Page 326 U. S. 608
6. In new of the important place of trial by jury in the Bill of
Rights, Congress will not be deemed to have intended to substitute
the belief of appellate judges in the guilt of an accused, however
justifiably engendered by the record, for ascertainment of guilt by
a jury under appropriate judicial guidance, however cumbersome that
process may be. P. 326 U. S.
147 F.2d 199, reversed.
Certiorari, 324 U.S. 837, to review the affirmance of a
conviction of conspiracy to commit an offense under the National
Stolen Property Act.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
The petitioner was convicted of conspiring to violate the
National Stolen Property Act. The Circuit Court of Appeals for the
Second Circuit sustained the conviction. 147 F.2d 199. We brought
the case here, 324 U.S. 837, because it was submitted to the jury
in a way that raised an important question in the administration of
federal criminal justice.
The relevant facts upon which decision must turn are these.
Bollenbach, the petitioner, and others were indicted upon two
counts: for transporting securities in interstate commerce knowing
them to have been stolen (48 Stat. 794, 18 U.S.C. § 415; 35 Stat.
1152, 18 U.S.C. § 550) and for conspiring to commit that offense
(35 Stat. 1096, 18 U.S.C. § 88). Having been granted a severance,
Bollenbach was tried separately. No doubt, the securities had been
stolen in Minneapolis and were transported to New York. And it is
not controverted that Bollenbach helped to dispose of them in New
Page 326 U. S. 609
The question is whether he was properly convicted under the
indictment. The trial lasted seven days. After the jury had been
out seven hours, they returned to the Court to report that they
were "hopelessly deadlocked." Interchanges then ensued between
court and jury and between court and counsel. One of the jurors
asked, "Can any act of conspiracy be performed after the crime is
committed?" The trial judge made some unresponsive comments, but
failed to answer the question. No exception was noted immediately.
In a few minutes, the jury left, but, after twenty minutes, again
returned for further instructions. Bollenbach's counsel then
indicated that the court had left the bench too hurriedly to enable
him to except to the judge's failure to answer the question. After
an exception was then taken and allowed, the judge "mistakenly
replied," as the lower court noted, "that he had already told them
that there could be no conspiracy after the object of the
conspiracy had been attained."
After indulging in further colloquy with counsel not here
pertinent, the judge stated that he had this note of inquiry from
"If the defendant were aware that bonds which he aided in
disposing of were stolen, does that knowledge make him guilty on
the second count?"
In answer, the judge instructed the jury as follows:
"Of course, if it occurred afterwards, it would not make him
guilty, but, in that connection, I say to you that, if the
possession was shortly after the bonds were stolen, after the
theft, it is sufficient to justify the conclusion by you jurors of
knowledge by the possessor that the property was stolen. And, just
a moment -- I further charge you that possession of stolen property
in another State than that in which it was stolen shortly after the
theft raises a presumption that the possessor was the thief, and
transported stolen property in interstate commerce, but that such
presumption is subject to explanation, and must be considered with
all the testimony in the case."
Counsel for the accused excepted to this charge, but the judge
cut short an attempted request
Page 326 U. S. 610
by counsel with the remark, "You may except to the charge, but I
will not take any requests." The jury filed out, and returned five
minutes later with a verdict of guilty on the second -- the
conspiracy -- count. A sentence of two years and a fine of $10,000
were imposed. The Circuit Court of Appeals reversed the judgment,
and ordered a new trial. It found error in the charge just quoted.
"Certainly it is untenable to say" was the crux of its holding,
"that the possession of stolen goods raises any presumption that
they have in fact been transported in interstate commerce." 147
F.2d 199, 202. And it held that it could not disregard the error
because of the questionable evidence as to whether the accused knew
that the bonds had come from another State. But, on rehearing, the
Court's attention was called to the fact that, after his arrest,
the accused admitted that he knew that the bonds had come from the
West, and that he may have had that knowledge before he disposed of
them. On further consideration of the bearing of this evidence upon
the defendant's knowledge of the place of the theft, the Circuit
Court of Appeals changed its view and held that "it would be
altogether unwarranted to reverse the judgment because of the
mistake in the charge." 147 F.2d at 202.
That Court evidently felt free to disregard "the mistake in the
charge" only on its assumption that Bollenbach could be convicted
under this indictment as an accessory after the fact. But
Bollenbach was neither charged nor tried nor convicted as an
accessory after the fact. The Government did not invoke that theory
in the two lower courts, and disavows it here. And rightly so. The
receipt of stolen securities after their transportation across
State lines was not a federal crime at the time of the transactions
in question, and we need not consider the scope of a later
amendment making it so. See
Act of August 3, 1939, 53
Stat. 1178, 18 U.S.C. § 416; H.R.Rep. 422, 76th Cong., 1st Sess.
(1939), and S.Rep. 674,
Page 326 U. S. 611
76th Cong., 1st Sess. (1939). Bollenbach could not properly be
convicted for the offense for which he was charged and for which he
was convicted -- namely, for having conspired to transport
securities across State lines -- merely on proof that he was a
"fence" -- i.e.,
helped to dispose of the stolen
securities after the interstate transportation was concluded. While
§ 332 of the Criminal Code, supra,
made aiders and
abetters of an offense principals, Congress has not made
accessories after the fact principals. Their offense is distinct,
and is differently punished (§ 333 of the Criminal Code, 35 Stat.
1152, 18 U.S.C. § 551.)
We are therefore thrown back upon an appraisal of what the
Circuit Court of Appeals deemed a mistaken charge in the proper
setting of this case.
The Government does not defend the "presumption" as a fair
summary of experience. It offends reason, so the Government admits,
as much as did the presumption which was found unsupportable in
Tot v. United States, 319 U. S. 463
even though that was embodied in an Act of Congress. Instead, the
Government, in effect, asks us to pay no attention to this palpably
erroneous answer by the judge to the jury's inquiry as to guilt on
the charge of conspiracy to transport stolen securities "[i]f the
defendant were aware that the bonds which he aided in disposing of
were stolen." We can pay no attention to this misdirection only by
assuming that the jury paid no attention to it, and that the case
is before us as though no misdirection had been given. To do so is
to disregard the significance of the course of events, as revealed
by the record, after the case went to the jury.
The Government suggests that the judge's misconceived
"just what it appears to be -- a quite cursory last-minute
instruction on the question of the necessity of knowledge as to the
stolen character of the notes, and nothing more."
But, precisely because it was a
Page 326 U. S. 612
"last-minute instruction," the duty of special care was
indicated in replying to a written request for further light on a
vital issue by a jury whose foreman reported that they were
"hopelessly deadlocked" after they had been out seven hours.
"In a trial by jury in a federal court, the judge is not a mere
moderator, but is the governor of the trial for the purpose of
assuring its proper conduct and of determining questions of
Quercia v. United States, 289 U.
, 289 U. S. 469
"The influence of the trial judge on the jury is necessarily and
properly of great weight," Starr v. United States,
153 U. S. 614
153 U. S. 626
and jurors are ever watchful of the words that fall from him.
Particularly in a criminal trial, the judge's last word is apt to
be the decisive word. If it is a specific ruling on a vital issue
and misleading, the error is not cured by a prior unexceptional and
unilluminating abstract charge.
An experienced trial judge should have realized that such a long
wrangle in the jury room as occurred in this case would leave the
jury in a state of frayed nerves and fatigued attention, with the
desire to go home and escape overnight detention, particularly in
view of a plain hint from the judge that a verdict ought to be
forthcoming. The jury was obviously in doubt as to Bollenbach's
participation in the theft of the securities in Minneapolis and
their transportation to New York. The jury's questions, and
particularly the last written inquiry in reply to which the
untenable "presumption" was given, clearly indicated that the
jurors were confused concerning the relation of knowingly disposing
of stolen securities after their interstate journey had ended to
the charge of conspiring to transport such securities. Discharge of
the jury's responsibility for drawing appropriate conclusions from
the testimony depended on discharge of the judge's responsibility
to give the jury the required guidance by a lucid statement of the
relevant legal criteria. When a jury makes explicit its
difficulties, a trial judge should clear them
Page 326 U. S. 613
away with concrete accuracy. In any event, therefore, the trial
judge had no business to be "quite cursory" in the circumstances in
which the jury here asked for supplemental instruction. But he was
not even "cursorily" accurate. He was simply wrong.
The Circuit Court of Appeals read the judge's charge to mean
that the jury was permitted to find Bollenbach "guilty of a
conspiracy to transport stolen notes if he joined in their disposal
after the transportation had ended." We so read it. That Court, as
we have seen, properly rejected the propriety of leaving the case
to the jury as the trial judge had left it, but sustained the
conviction on its own "accessory after the fact" theory. Compelled
to repudiate this theory, the Government now seeks to sustain the
conviction on the afterthought that the charge did not mean what it
said, and that, while the jury asked one question, the trial judge
replied to another. Here, then, are three different and conflicting
theories regarding a charge designed to guide the jury in
determining guilt, and yet we are asked to sustain the conviction
on the assumption that the jury was properly guided. The Government
contends that the court below failed to appreciate several factors
in regard to the criticized charge. What reason is there for
assuming that the jury did not also fail to appreciate these
factors which the Government, in an elaborate argument, explains as
requisite for a proper understanding of that which, at best, was
dubiously expressed? A conviction ought not to rest on an equivocal
direction to the jury on a basic issue. And a charge deemed
erroneous by three circuit judges of long experience and who have a
sturdy view of criminal justice is certainly not better than
equivocal. The Government's suggestion really implies that,
although it is the judge's special business to guide the jury by
appropriate legal criteria through the maze of facts before it, we
can say that the lay jury will know enough to disregard the
Page 326 U. S. 614
bad law if, in fact, he misguides them. To do so would transfer
to the jury the judge's function in giving the law and transfer to
the appellate court the jury's function of measuring the evidence
by appropriate legal yardsticks.
The Government argues that the sting of error is extracted
because there was proof, other than the erroneous "presumption," on
the issue of Bollenbach's participation in the wrongdoing before
the transportation of the stolen securities had ended. This is to
disregard the vital fact that, for seven hours, the jury was unable
to find guilt in the light of the main charge, but reached a
verdict of guilty under the conspiracy count five minutes after
their inquiry was answered by an untenable legal proposition. It
would indeed be a long jump at guessing to be confident that the
jury did not rely on the erroneous "presumption" given them as a
guide. A charge should not be misleading. See Agnew v. United
States, 165 U. S. 36
165 U. S. 52
Legal presumptions involve subtle conceptions to which not even
judges always bring clear understanding. See
Preliminary Treatise on Evidence (1878), Chaps. 8 and 9; Wigmore,
Evidence (3d Ed., 1940) §§ 2490-2540; Morgan, Some Observations
Concerning Presumptions (1931) 44 Harv.L.Rev. 906; Denning,
Presumptions and Burdens (1945) 61 L.Q.Rev. 379. In view of the
Government's insistence that there is abundant evidence to indicate
that Bollenbach was implicated in the criminal enterprise from the
beginning, it may not be amiss to remind that the question is not
whether guilt may be spelt out of a record, but whether guilt has
been found by a jury according to the procedure and standards
appropriate for criminal trials in the federal courts.
Accordingly, we cannot treat the manifest misdirection in the
circumstances of this case as one of those "technical errors" which
"do not affect the substantial rights of the parties," and must
therefore be disregarded. 40 Stat. 1181, 28 U.S.C. § 391. All law
is technical if viewed solely from concern for punishing crime
without heeding the mode by
Page 326 U. S. 615
which it is accomplished. The "technical errors" against which
Congress protected jury verdicts are of the kind which led some
judges to trivialize law by giving all legal prescriptions equal
Taft, Administration of Criminal Law (1905)
15 Yale L.J. 1, 15. Deviations from formal correctness do not touch
the substance of the standards by which guilt is determined in our
courts, and it is these that Congress rendered harmless. Bruno
v. United States, 308 U. S. 287
308 U. S.
-294; Weiler v. United States, 323 U.
, 323 U. S. 611
too often all errors to be "prejudicial," the judicial pendulum
need not swing to presuming all errors to be "harmless" if only the
appellate court is left without doubt that one who claims its
corrective process is, after all, guilty. In view of the place of
importance that trial by jury has in our Bill of Rights, it is not
to be supposed that Congress intended to substitute the belief of
appellate judges in the guilt of an accused, however justifiably
engendered by the dead record, for ascertainment of guilt by a jury
under appropriate judicial guidance, however cumbersome that
process may be.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
the applications by the English courts of a
similar provision in the Criminal Appeal Act, 1907: Maxwell v.
Director of Public Prosecutions,
 A.C. 309; Rex v.
 2 K.B. 80; Rex v. Slender,
Crim.App.Rep. 155; Rex v. Redd,
 1 K.B. 104; Rex
 2 K.B. 385; Rex v. Ahlers,
K.B. 616; Rex v. Thompson,
 2 K.B. 99; Rex v.
 1 K.B. 287; Rex v. Rodley,
K.B. 468; Rex v. Ellis,
 2 K.B. 746; Rex v.
 2 K.B. 454; cf. Bray v. Ford,
A.C. 44. And see Makin v. Attorney General,
57, construing a similar provision in the Criminal Law (Amendment)
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
Page 326 U. S. 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. [Footnote 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
165 U. S. 502
burglary, McNamara v. Henkel, 226 U.
, 226 U. S.
-525; arson, Wilson v. United States,
162 U. S. 613
162 U. S.
-620, and even murder, ibid.
And, in the
this Court approved a charge
by the trial court using substantially the same language as to
"presumption" which the trial court here used. [Footnote 2
] There is no reason which I can
Page 326 U. S. 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"
Page 326 U. S. 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
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
Page 326 U. S. 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 nonetheless 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. [Footnote 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.
the cases collected in notes on Hunt v.
70 Am.Dec. 447-452, State v. Drew,
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 "inferences," cf. New York Life Insurance
Co. v. Gamer, 303 U. S. 161
303 U. S.
-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
64 F.2d 15, 17; United States v. Seeman,
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
at 162 U. S.
"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
that he was present and concerned in the
offense; and, in Rex v. Diggles
(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
is to be considered by the jury, along with the
other facts in the case, in arriving at their verdict."
This Court reads the trial judge's charge to mean that
Bollenbach was "guilty of a conspiracy to transport goods if he
joined in their disposal after the transportation had
" The trial judge actually charged the jury thus:
"If the participation of this defendant in this was
-- 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
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
The judge's reply, so far as relevant to this particular
question, was: "Of course, if it occurred afterwards,
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 no more than join in disposal of the bonds after their
transportation had ended.