Felix Frankfurter

“ 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. ”

“ When a jury makes explicit its difficulties a trial judge should clear them 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. ”

“ 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' that 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 reasoning. ”

“ 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. ”

“ 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 none the less a reasonable one. ”

“ 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. ”

“ 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 inference, is to be considered by the jury along with the other facts in the case in arriving at their verdict.' (Italics supplied.) ”