Whitaker v. United States

• Decision Date: 11 May 1925
• Docket Number: No. 4345.,4345.
• Citation: 5 F.2d 546
• Parties: WHITAKER v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

5 F.2d 546 (1925)

WHITAKER v. UNITED STATES.

No. 4345.

Circuit Court of Appeals, Ninth Circuit.

May 11, 1925.

McDonald & Thompson, of Los Angeles, Cal. (E. M. Van Meter, of Washington, D. C., and Chas. L. Smyth, of Philadelphia, Pa., of counsel), for plaintiff in error.

Samuel W. McNabb, U. S. Atty., and John R. Layng, Sp. Asst. U. S. Atty., both of Los Angeles, Cal.

Before GILBERT, HUNT, and RUDKIN, Circuit Judges.

GILBERT, Circuit Judge.

The plaintiff in error and five others were indicted for violation of section 3 of the Act of Congress of October 29, 1919, known as the National Motor Vehicle Theft Act (Comp. St. Ann. Supp. 1923, § 10418d), and were charged with knowingly, willfully, unlawfully, and feloniously transporting and causing to be transported a certain motor vehicle (describing the same), in interstate commerce from Ocean City, N. J., to Los Angeles, Cal., "they, and each of them, then and there well knowing the said motor vehicle to have been stolen, being not then and there the property of the said defendants or either of them." The indictment further alleged that there was no consent of the owner of the motor to take, transport, or cause the same to be transported from Ocean City to Los Angeles. The plaintiff in error was found guilty as charged.

The contention that the act under which the conviction was had is unconstitutional is met and answered by the recent decision of the Supreme Court in Rae Brooks v. United States, 45 S. Ct. 345, 69 L. Ed. ___. The contention that the indictment was insufficient, in that it failed to allege the ownership of the motor vehicle or the value thereof and contained no direct averment that the vehicle was stolen, is answered by the recent decision of this court in the case of Foster v. United States, 4 F.(2d) 107, where it was held that such matters need not be set forth in the indictment; that the indictment is sufficient if it expressly and distinctly alleges every element entering into the offense as set forth in the statute and contains a specific description of the vehicle alleged to have been stolen.

Exception was taken to an instruction to the jury concerning the provisions of the statute, in which it was said: "Commerce means a passing to and fro; interstate commerce means the transportation (that is, causing to be moved) from one state, territory or the District of Columbia, to another state, territory or the District of Columbia. A vehicle is transported when it is shipped by common carrier or moved on its own wheels." We are unable to see wherein the instruction is contrary to the meaning of "commerce" and "interstate commerce" as defined by the Supreme Court in Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23, and other decisions of that court which are cited. In Hoke v. United States, 227 U. S. 308, 320, 33 S. Ct. 281, 283 (57 L. Ed. 523, 43 L. R. A. N. S. 906, Ann. Cas. 1913E, 905), it was said: "Commerce among the states, we have said, consists of intercourse and traffic between their citizens and includes the transportation of persons and property." There can be no question but that the driving of a stolen automobile from one state to another on its own power is in itself interstate commerce notwithstanding that it carries no freight or passengers for hire. Whitaker v. Hitt, 52 App. D. C. 149, 285 F. 797, 27 A. L. R. 951; Kelly v. United States (C. C. A.) 277 F. 405. There was no error, therefore, in the instruction as given; nor was it error to refuse to instruct as requested that the mere transportation of an automobile from state to state without a view to financial or pecuniary gain or benefit does not constitute a transportation in interstate commerce as intended in the use of that term in the Dyer Act (Comp. St. Ann. Supp. 1923, §§ 10418b-10418f).

The assignments of error principally relied upon are directed against the admission of certain testimony. The plaintiff in error, together with Harry Drexel and four young women, started out to go from Pennsylvania to Los Angeles in two automobiles, one of which was the property of the plaintiff in error, and the other was the...