(dissenting in part).
According to the majority opinion, appellants could have been convicted not only for the stealing of goods from a shipment in interstate commerce but also for stealing of goods constituting an interstate shipment which latter would not necessarily involve an actual moving in interstate commerce. Assuming that the majority construction of the particular statute1 -is correct, such a situation could arise — it might possibly have arisen in this case 'but in fact did not.
Under the instant indictment there had to be a commencement of movement in interstate commerce in order to justify a verdict of guilty. It is true that the statutory language is disjunctive. It reads: “Whoever shall steal * * * any goods or chattels moving as or which are a part of or which constitute an interstate or foreign shipment * * (Emphasis supplied.) The indictment, however, while based on the statute, does not follow the statutory language. Its first count reads that the defendants “did * * * steal * * * 600 cases of bottled beer * * * shipped by P. Ballantine & Sons, at Newark, New Jersey, and consigned to Charles Luberger at North Tarrytown, New York, in the course of shipment in interstate commerce, all of which said goods and 'chattels were then and there in the custody and possession of P. Ballantine & Sons at Newark, aforesaid, and not as yet delivered to the consignee and which said goods and chattels were moving as, formed a part of and constituted an interstate shipment of freight in the course of shipment in interstate commerce.” (Emphasis supplied.)
The critical language of the second count is the same.
If the majority view of the statute is sound, then the indictment under which these appellants were tried, differs radically from the statute. Whatever be the situation as to that, the only offense the indictment charges and the only offense for which these appellants could be convicted under it, is that the beer constituted an interstate shipment, the interstate movement of which had already begun.
37 Stat. 670, amended 43 Stat. 793, amended 47 Stat. 773, 18 U.S.C.A. § 409.