McNally v. Hill, 5257.

• Decision Date: 13 February 1934
• Docket Number: No. 5257.,5257.
• Citation: 69 F.2d 38
• Parties: McNALLY v. HILL.
• Court: U.S. Court of Appeals — Third Circuit

69 F.2d 38 (1934)

McNALLY v. HILL.

No. 5257.

Circuit Court of Appeals, Third Circuit.

February 13, 1934.

Nathan Fink, of Scranton, Pa., for appellant.

Herman F. Reich, of Sunbury, Pa., for appellee.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge.

McNally, with others, was tried, convicted and, upon nearby days, was sentenced on all counts of two indictments framed under the Conspiracy Act (Cr. Code § 37 18 US CA § 88) and the National Motor Vehicle Theft Act, sections 1-5 of the Act of October 29, 1919, 41 Stat. 324, embodied in section 408 of Title 18 USCA. Submitting to imprisonment without appeal, McNally has not complained of the sentence of two years' imprisonment imposed under one indictment containing one count which charged conspiracy to violate the cited statute, nor has he excepted in any way to the sentences under the first and second counts of the other indictment which imposed penalties of imprisonment for two and four years to run concurrently, but now, as the longest of the first three sentences is approaching its end, he has filed in the District Court a petition for a writ of habeas corpus and complains grievously of the sentence imposed under the third count of the latter indictment which called for imprisonment for a term of four years to run consecutively with the other two terms, thus extending the aggregate of the sentences from four years to eight years. By his petition, he seeks release from the sentence under the third count on the ground that, thereunder, the court had not jurisdiction to try him and none to impose sentence upon him. He bases this contention on the allegation that the count does not charge an offense under the National Motor Vehicle Theft Act in that it alleges that he, with others, sold in New Jersey a motor vehicle which "had theretofore been transported in interstate commerce (from New York to New Jersey), which had theretofore been stolen from the true owner (in New York), the said defendants knowing that said car so sold as aforesaid had been stolen and transported in interstate commerce contrary" to the cited statute. In a word, his contention is that the sale in New Jersey was of a stolen motor vehicle not shown, as required by the statute, to be a part of or moving in interstate commerce at the time of sale and therefore the offense, if any, was against the law of New Jersey, triable only by a court of that state, and that his trial by a federal District Court in New York was invalid because in violation of clause 3, section 2, of article 3 of the Constitution of the United States, which provides that: "The Trial of all Crimes * * * shall be held in the State where the said Crimes shall have been committed. * * *" The learned district judge, holding that the federal trial court had jurisdiction, denied the petition and the relator, McNally, has taken this appeal which we shall entertain without committing ourselves on the question whether or not this proceeding for a writ of habeas corpus is an attempted substitute for an appeal from the judgment of sentence.

The pertinent provisions of the applicable federal statute are these:

"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. * * *

"Sec. 4. That whoever shall receive, conceal, store, barter, sell, or dispose of any motor vehicle, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be punished. * * *

"Sec. 5. That any person violating this Act may be punished in any district in or through which such motor vehicle has been transported or removed by such offender."

The purpose of this act, obvious on reading it and tersely stated by Mr. Chief Justice Taft in Brooks v. United States, 267 U. S. 432, 438, 45 S. Ct. 345, 347, 69 L. Ed. 699, 37 A. L. R. 1407, was to put an end to elaborately organized schemes for the theft of automobiles, ordinarily successful because of the speed with which the stolen property can, by its own power, be moved into distant police jurisdictions and made difficult of detection by that very fact.

Adverting to the fourth section of the act (18 USCA § 408), the one here in question, the Chief Justice remarked in the Brooks Case that it made "more effective the regulation contained in the third section. The third section punishes the transportation of a stolen automobile with knowledge of the theft. The fourth section punishes the receipt, the concealment, the storing, the bartering, the sale or the disposition of such stolen vehicle moving as interstate commerce or as a part thereof with knowledge of its having been stolen. Of course this section can and does apply only to the storing or concealment (and, we think, he meant that it applies also to the other specifically forbidden acts of receipt, barter, and sale as...