Ackerson v. United States, 14161.
| Decision Date | 15 December 1950 |
| Docket Number | No. 14161.,14161. |
| Parties | ACKERSON v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
J. M. Willemin, Jonesboro, Ark., for appellant.
James T. Gooch, U. S. Atty., G. D. Walker, and W. H. Gregory, Asst. U. S. Atty., all of Little Rock, Ark., for appellee.
Before GARDNER, Chief Judge, and WOODROUGH and RIDDICK, Circuit Judges.
This appeal is from a judgment of conviction on a charge that defendant "did knowingly, wilfully and unlawfully transport and cause to be transported and aid and assist in the transportation of a motor vehicle in interstate commerce * * * then and there well knowing said motor vehicle to have been stolen," in violation of Section 408, Title 18 U.S.C.A., now Section 2312, Title 18, U.S.C.A. The pertinent part of the statute reads as follows: "* * * 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 of not more than five years, or both."
The indictment charged defendant with the transportation of a 1940 Chevrolet sedan motor car from Paragould, Greene County, Arkansas, to the City of Memphis, in the State of Tennessee, well knowing said car to have been stolen, the car being the property of one C. M. Faulkner, of Paragould, Arkansas.
Shortly before the transaction here involved, C. M. Faulkner purchased, in Los Angeles, California, the Chevrolet automobile described in the indictment for the sum of $1,000. On the 28th of July, 1948, he was approached by defendant regarding the sale of the car. After some negotiations with reference to the price of the car the owner agreed to sell to defendant for $1200. Defendant agreed to purchase the car for this sum but stated that he did not have that much money in cash but that if Mr. Faulkner would deliver the car to Woodlawn, Illinois, defendant would pay him $1200 in cash, or in the alternative he would give him a check for the amount of the purchase price. Defendant assured Faulkner that, "The money is there, the check is good." Faulkner testified that, "We agreed that he would give me the check and I wouldn't give him any papers, any title, anything, and I told him my title hadn't yet come in from California."
To this defendant replied that all he wanted was a bill of sale. Faulkner then said that he could give a bill of sale and attach it to the check but that he could not attach title, but that as soon as it arrived from California he would mail the title. The check was later forwarded with bill of sale attached but was not paid because defendant had no funds in the bank on which the check was drawn. Mr. Faulkner then went to DuQuoin, Illinois, where the bank on which the check was drawn was located, and where the defendant resided. He was, however, unable to find the defendant but later located the car in the possession of a man at Memphis, Tennessee. On cross-examination defendant testified that he sold the automobile at an auction sale in Mississippi.
Faulkner had never received any money on the check. He testified that at the time of the agreed sale of the car he delivered possession to the defendant and gave him the keys to the car. He was then interrogated on cross-examination and answered as follows:
The witness also testified:
The check was drawn on a bank in which defendant had no funds and never had had any funds. Neither did he at any time after issuing the check place any money in the bank for the purpose of paying the check when it was presented. When he sold the car he gave his own address as Dyersburg, Tennessee, which was not his correct address and never had been. There was evidence that defendant placed $1200 in the hands of the sheriff of the county in which he lived in Illinois, with directions to the sheriff to make payment if and when Faulkner might make demand. There was no claim that Faulkner had any notice of this alleged deposit with the sheriff, and defendant must be presumed to have known that the check would in due course be presented to the bank on which it was drawn and not to the sheriff or anyone else, and it was in fact so presented. There was other testimony but in our view of the issues presented it is not material.
At the close of the government's case and again at the close of the evidence defendant moved for a judgment of acquittal which was denied and the case was submitted to the jury on instructions to which defendant saved certain exceptions. The defendant in seeking reversal contends that the court erred (1) in denying his motion for judgment of acquittal made at the close of all the testimony and (2) in refusing to give certain instructions requested by defendant and in the giving of certain instructions.
It is argued by defendant that the evidence was insufficient to prove the offense charged because the proof failed to show that the property transported was stolen property. The gist of the offense was the alleged transportation in interstate commerce. The statute does not purport to punish for larceny but for the transportation in interstate commerce of stolen property. As the statute does not define larceny it must be assumed that Congress had in mind larceny as defined by the common law. We are therefore not at liberty to resort to the special statute of the State of Arkansas which includes in the crime of larceny the offense of obtaining personal property by false pretenses. At common law larceny may be said to consist in "the felonious taking by trespass and carrying away by any person of the goods or things...
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...between felonies and misdemeanors. 5 Murphy v. United States, 5 Cir., 1953, 206 F.2d 571 (false pretenses); Ackerson v. United States, 8 Cir., 1950, 185 F.2d 485 (false pretenses); Hite v. United States, 10 Cir., 1948, 168 F.2d 973 (false pretenses). Cf. Hand v. United States, 10 Cir., 1955......
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