Kelly v. United States

• Decision Date: 01 November 1921
• Docket Number: 1864.
• Citation: 277 F. 405
• Parties: KELLY v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

277 F. 405

KELLY v. UNITED STATES.

No. 1864.

United States Court of Appeals, Fourth Circuit.

November 1, 1921

Frank A. Miller, of Hartsville, S.C., for plaintiff in error.

J Waties Waring, Asst. U.S. Atty., of Charleston, S.C. (Francis H. Weston, U.S. Atty., of Columbia, S.C., on brief), for the United States.

Before KNAPP and WOODS, Circuit Judges, and WATKINS, District Judge.

KNAPP Circuit Judge.

Plaintiff in error, herein referred to as defendant, was convicted of transporting in interstate commerce a certain automobile knowing the same to have been stolen, in violation of the Act of October 29, 1919 (41 Stat. 325), known as the National Motor Vehicle Theft Act, the third section of which reads as follows:

'Sec 3. That whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000 or by imprisonment for not more than five years, or both.'

Not denying that the automobile described in the indictment was stolen from its owner, and admitting that he got possession of it soon afterwards at Columbia, S.C., and took it at once into the state of Georgia, defendant here urges as grounds for reversal, among other things: (1) That there is no evidence that he knew the car had been stolen; and (2) no evidence that it was transported in interstate commerce. Bearing upon these contentions the following facts appear, as the jury were warranted in finding:

The car in question, a Buick, 1919 model, said by the owner to be worth about $1,600, was stolen from him at Hartsville, S.C., where he lived, and near which defendant also resided, on the evening of Monday, March 29, 1920. The loss was promptly reported to the chief of police, who telephoned a description of the car to surrounding towns and made other efforts to trace it. The next day advertisements sent by wire were inserted in several daily papers. On the following Friday the car was located in Canton, Ga., to which place it had been taken by defendant and a relative of his, named Skinner. Two or three days later the owner went to Canton with the chief of police and recovered it. He found that the old tag had been removed and a new tag put on, which, as he afterwards learned, had been issued to defendant at Columbia on the 30th of March. On his return home he swore out a warrant for defendant and Skinner, who in the meantime had been arrested at Knoxville, Tenn., and they were brought back to Hartsville by the sheriff. For some reason their prosecution under the state law was abandoned, and instead defendant was indicted and tried under the federal statute. Further testimony for the government was to the effect that on their way to Canton, at the little station of Lebanon, Ga., where they spent a night, they gave the names of Smith and Jones, and that defendant there tried to sell the car for $1,300, but refused a check for $1,000 to be dated 10 days ahead, to allow him to furnish a reference.

The defendant testified in substance, as did Skinner, that they came to Columbia in the forenoon of Wednesday, March 31st, intending to go on that day by rail to Louisville, Ky., where defendant owned or had an interest in a traveling show business, in which Skinner was to be employed; that while walking around, waiting for the train, they came to a garage which stood back some 20 or 30 feet from the street and on which was the sign, 'We buy and sell second-hand cars;' that defendant thereupon proposed to buy a second-hand car and motor across the country to Louisville; that on or near the street in front of the garage was a negro working on a car, which he said he had come there to sell; that he asked $700 for it, but after some bargaining let defendant have it for $550; that the car was very muddy, the top badly torn, one or more tires flat, and other parts needing adjustment; that they proceeded to put it in running condition and started out with it that afternoon. It was the stolen car.

The negro, who called himself Charles Brown, was a sranger to both defendant and Skinner. Neither had seen him before. According to their own admissions he was not asked, and did not tell, when or where or from whom he obtained the car, whether it was new or used when he got it, what he had been doing with it, how it came to be in such a condition, why he wanted to sell it, or how he happened to be in Columbia at the time. No inquiry was made at the garage, and no other effort made to ascertain whether this unknown negro was the owner of the car which he was so anxious to sell. In explanation of the tag number, defendant said that some days before he had lost the tag on a Hudson car which he owned, and had obtained a duplicate, which was at the hotel with his baggage, and that he put this duplicate on the Buick in place of the tag which the negro removed when he bought it.

Without reference to other incidents of the purchase and trip to Canton, it seems that on arrival there they took the car to a garage to be washed, and went on foot to a boarding house to arrange for accommodations; that while away for this purpose they were told by a boy that the car had been seized as a stolen car, and that they would be arrested if they went back; that thereupon they got the boy to take them in a Ford car to a railroad station some 12 miles out in the country, where they spent the night; and that next morning they boarded the train for Knoxville, at which place they were arrested and put in jail. The reason given by them for leaving Canton in that way was that they desired to avoid arrest in a town where they were strangers and could not get bail. They also said they intended to return home at once to meet any charge that might be brought against them, and that they took the Knoxville train to do so, although, as the government points out, the much shorter route was in the opposite direction. We need not comment upon this evidence. In our judgment it was clearly sufficient to make a case for the jury to determine whether defendant bought and transported the car in question, 'knowing the same to have been stolen,' and the trial court, therefore, did not err in refusing to direct a verdict in his favor for lack of proof of guilty knowledge.

Was the car transported 'in interstate commerce'? That the act under review was intended to cover such a case as is here disclosed seems to us not doubtful, and the learned judge below charged the jury as follows:

'I charge you further, gentlemen, that the term 'interstate commerce,' as used in the

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