Madsen v. United States

• Citation: 165 F.2d 507
• Decision Date: 05 January 1948
• Docket Number: No. 3490.,3490.
• Parties: MADSEN v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

165 F.2d 507 (1947)

MADSEN v. UNITED STATES.

No. 3490.

Circuit Court of Appeals, Tenth Circuit.

December 17, 1947.

Rehearing Denied January 5, 1948.

J. Paul Jorgensen, of Wichita, Kan. (H. C. Castor, of Wichita, Kan., on the brief), for appellant.

Lester Luther, Asst. U. S. Atty., of Topeka, Kan. (Randolph Carpenter, U. S. Atty., and James W. Wallace, Asst. U. S. Atty., both of Topeka, Kan., on the brief), for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

Appellant, Elmer Siles Madsen, together with Jack Aaron Burger, Gerald Theodore Fowler, William Eugene Duvall, Clinton Otis Ransford, and Frank Nelson Madsen, were charged by count 1 of an indictment under 18 U.S.C.A. § 88¹ with a conspiracy to commit offenses against the United States in violation of the National Motor Vehicle Theft Act,² and in subsequent counts with the commission of substantive offenses. Count 1 of the indictment charged the conspiracy. It also charged the commission of thirty-three overt acts in effectuating the conspiracy. Counts 3, 5 and 8 of the substantive counts charge Madsen with receiving and concealing certain named motor vehicles moving in interstate commerce, knowing them to have been stolen. Counts 6, 9, 10 and 13 charge him with transporting certain named stolen vehicles from places in Kansas, to places in Oklahoma, and certain other named motor vehicles from places in Oklahoma, to places in Kansas, knowing them to have been stolen. He was found guilty by a jury on all counts. A motion in arrest of judgment was sustained as to counts 9 and 13, and judgment was entered on the remaining counts. This appeal followed.

Appellant's brief sets out fourteen assignments of error upon which he relies for reversal. These assignments may, however, be summarized generally as follows:

1. The indictment is insufficient because it does not charge appellant with a wrongful intent or with knowledge of any of the essential acts necessary to commit an offense against the United States.

2. Erroneous instructions by the court.

3. The evidence was insufficient to support the verdict of guilty.

The Indictment³

The sufficiency of an indictment is no longer tested by the rigors of the old technical rules of criminal procedure. The test is whether the indictment contains the elements of the offense intended to be charged and sufficiently informs the defendant of what he must meet in the preparation of his defense, and whether it is sufficiently specific to obviate the danger of the defendant being prosecuted a second time for the same offense. The indictment must allege the essential elements of the offense but mere forms of averment may be disregarded.⁴ Tested by these rules, we find no difficulty in upholding the sufficiency of the indictment.

The indictment charged the defendants with having conspired, confederated and combined with others unknown to commit certain offenses against the United States in violation of certain statutes of the United States, naming them. Then, as set out in the foot note, it designates specifically the method by which the conspiracy was to be consummated, followed by a list of the overt acts charged to have been committed in effectuating the conspiracy. There could be no doubt or uncertainty in the minds of any of the defendants as to the nature of the crime charged to them. It is true, as urged, that the indictment does not contain the words "knowingly, wilfully, feloniously, intentionally or unlawfully" but neither do the applicable statutes contain such words. It is unnecessary for an indictment to contain such formal words where the allegations thereof necessarily or fairly import guilty knowledge.⁵ An indictment charging a conspiracy is sufficient if it follows the language of the statute and contains a sufficient statement of an overt act to effectuate the object of the conspiracy.⁶

It is also urged that the court erred in refusing to dismiss counts 3, 5, 6, 8 and 10 for the reason that such counts each charged two separate offenses and were, therefore, duplicitous. Count 6 charged defendants with having "transported and caused to be transported in interstate commerce a stolen motor vehicle." Transporting and causing to be transported constitute a single offense and a count which charges one with "transporting and causing to be transported" does not charge two separate offenses and is, therefore, not duplicitous. Count 10 charged the defendants with "having transported a stolen motor vehicle. * * *" There is no basis whatever for the assertion that this count charged more than one offense. Counts 3, 5 and 8 each charged appellant with having "received and concealed a stolen motor vehicle * * *." We have, in a number of cases, held that receiving and concealing a stolen motor vehicle having been transported in interstate commerce constituted a single and separate offense from that of transporting such motor vehicle in interstate commerce.⁷ The National Motor Vehicle Theft Act sets out two offenses — one of transporting or causing to be transported, and a second of receiving, concealing, storing, bartering, selling or disposing of such motor vehicle. The various elements constituting the second offense are set out in the disjunctive. They do not, however, each constitute a separate offense but separate acts by which a single offense may be committed. The crime of receiving or concealing a stolen motor vehicle, transported in violation of the Act, was properly charged in the conjunctive by the use of the conjunction "and." In fact, this is the only way in which the offense could have been charged without being subject to an attack for vagueness or indefiniteness.⁸

Instructions.

Complaint is made of the instructions of the court to the jury. It may be noted that no exceptions were taken to the instructions of the court at the time they were given to the Jury or prior to the time the jury retired to consider its verdict. Rule 30 of the New Rules of Criminal Procedure, 18 U.S.C.A. following section 687, provides that "No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." This rule does not, however, deprive a court of its inherent power on its own volition to inquire into the adequacy of a charge to a jury in a criminal case where the life or liberty of a defendant is involved.⁹

It is sufficient to say that we have examined the instructions of the court notwithstanding that no objections were made thereto as required by the above Rule, and that we find no substantial error therein. The instructions adequately and fairly presented the issues to the jury. In view of the condition of the record, and in the interest of brevity, we deem it needless to further elaborate on this assignment of error.

Finally, it is urged that there was insufficient evidence to support a verdict of guilty. There is a conflict in the evidence. Appellant testified to a statement of facts, which, if believed by the jury, would absolve him from liability, but unfortunately for him the jury rejected his version of these transactions. We may not reverse even though, as the triers of fact, we might have believed the testimony which the jury rejected. Since our function is limited to an inquiry to ascertain whether the verdict finds support in the evidence, only such evidence will be analyzed as in our opinion supports the verdict. As pointed out, count 1 of the indictment charged a conspiracy. The gist of such an offense is an unlawful agreement or understanding between the parties to violate the law, supplemented by an overt act in consummation thereof.¹⁰ It is rarely that a conspiracy is susceptible of direct proof. Men do not ordinarily reduce such unlawful agreements to writing or make them a matter of record. Ordinarily criminal conspiracies must of necessity be established largely by indirect and circumstantial evidence, and by inferences largely deductible from the acts and conduct of the conspirators.¹¹

There was evidence to the following effect. Appellant, Madsen, was, in 1946 and years prior thereto, engaged in the auto salvage business in Anthony, Kansis, under the trade name of Madsen's Auto Salvage Business. Defendant, Fowler, purchased a 1934 Chevrolet from Madsen in September, 1945. Subsequently, Fowler purchased a 1935 Plymouth from Madsen. Early in January, 1946, he and Madsen were sitting on a truck bed in Madsen's yard, and Fowler asked Madsen if he would buy a later model car. Madsen asked what model, and Fowler replied, "Around a '40 or '41," to which Madsen replied, "Yes, I will buy it." Fowler stole a 1937 Chevrolet at Arkansas City, and sold it to Madsen, giving him a bill of sale for it but not delivering a certificate of title as required by the Kansas Laws. Madsen and Fowler had another conversation later in which Madsen asked Fowler if he was going to bring him titles to cars or if they would be without titles, and Fowler told him he would try to get titles. He did not get any titles for some time but later began getting titles from one O'Brien at Great Bend, and Fowler did then attempt to steal a car that as to make and model would fit the title. If the title certificate he got was for a 1936 Chevrolet, he would try to get a 1936 Chevrolet. Later Fowler asked Madsen if he would take the cars without titles, and Madsen said yes that he would try to match them in some way. Fowler had defendants Duvall and Burger assist him in stealing cars. They would drive the stolen cars to Anthony, and leave them at the City Lake or elsewhere about town and Fowler would get them and deliver them to Madsen. From the first of January, 1946, until sometime in April, 1946, Fowler delivered eighteen or twenty stolen automobiles to Madsen, and with part of them he delivered certificates of title, but...