Before LUMBARD, Chief Judge, and TUTTLE*fn* and FRIENDLY, Circuit Judges.
George Lefkowitz, Joseph P. Dryja and Richard Emond appeal from judgments of the District Court for the Eastern District of New York adjudging them to be convicted, upon a verdict of guilty, of violation of 18 U.S.C. § 659. We are constrained to reverse the convictions and order a new trial for what we deem prejudicial errors in the instructions to the jury.
The indictment charged that defendants received and had in their possession 352 cases of shoes and other merchandise valued at some $40,000, stolen from a motor truck while moving as an interstate shipment from Dorchester, Massachusetts, to New York City, knowing the cases to have been stolen. The truck itself was stolen while parked on a street near the J. A. Garvey Transportation Company terminal in Long Island City in the early morning of February 19, 1959. A few hours later it was backed into a warehouse in Brooklyn owned by Lefkowitz; there it was partly unloaded. Later in the day the truck was driven out of the warehouse and parked a few blocks away whers an F.B.I. agent found it. Two days later F. B. I. agents interviewed Lefkowitz. He freely disclosed the receipt of the merchandise, claimed that this had been preceded by a personal inquiry and a telephone call from a man theretofore unknown to him and still known only as "Lou," and contended, as he did later at the trial, that the transaction was innocent on his part. Two of Lefkowitz's employees, Plummer and Johnson, identified Emond as having been present at the warehouse during the unloading of the truck; Plummer said Emond was "under the wheel" and then helped in the unloading. This identification testimony was challenged. Two men in addition to the driver were on the truck when it entered the warehouse. The government's theory is that Dryja either was one of them or came to the warehouse as a customer; the evidence offered to support this we shall discuss below. Lefkowitz took the stand in his own defense and called seven witnesses to his good reputation. Neither Dryja nor Emond testified; both offered evidence intended to show their presence elsewhere at the critical times.
At the request of the government the court charged the jury:
"Possession of recently stolen goods casts upon those holding them the burden of explaining their possession and you may infer guilty knowledge of the theft, in the absence of explanatory facts and circumstances consistent with innocence."
Lefkowitz's counsel promptly excepted; Emond's counsel later joined in the exception.*fn1 After having deliberated for some time, the jury returned to ask the court the following question:
"Regarding your charge: Did your Honor state that in respect to recently stolen merchandise, that the burden of proof rests with the defendant that he did not know the merchandise was stolen if he was in possession of same?
"Please explain burden of proof." The court answered:
"The burden of proof rests upon the Government throughout the case, that is No. 1.
"Now, I quoted from an authority having to do with the possession of recently stolen goods.
"That opinion says that: 'Possession of recently stolen goods casts upon those holding them the burden of explaining their possession and you may infer guilty knowledge of the theft, in the absence of explanatory facts and circumstances consistent with innocence.'
"Now, that may be rather a close question. Bear in mind what I said, the burden of proof is always on the Government. In considering whether the Government has sustained its burden of proof, you have the right further to consider whether a defendant shown to be in the possession of recently stolen goods has ...