Boone v. United States, 7228.

• Decision Date: 17 July 1956
• Docket Number: No. 7228.,7228.
• Parties: R. B. BOONE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

235 F.2d 939 (1956)

R. B. BOONE, Appellant, v. UNITED STATES of America, Appellee.

No. 7228.

United States Court of Appeals Fourth Circuit.

Argued June 14, 1956.

Decided July 17, 1956.

William J. Waggoner and Louis A. Bledsoe, Jr., Charlotte, N. C. (Weinstein and Muilenburg, Charlotte, N. C., on the brief), for appellant.

William I. Ward, Jr., Asst. U. S. Atty., Statesville, N. C. (J. M. Baley, Jr., U. S. Atty., Marshall, N. C., on the brief), for appellee.

Before PARKER, Chief Judge, SOPER, Circuit Judge, and BRYAN, District Judge.

BRYAN, District Judge.

With the District Judge we hold that in the intendment of section 2312, title 18, United States Code — outlawing the interstate transportation of stolen motor vehicles and aircraft — an automobile is "stolen" if it was obtained by false pretenses, notwithstanding that the circumstances of the procurement would not constitute larceny at common law. In our opinion the statute is not circumscribed by the requisites of larceny.

The point arises from the conviction of the appellant under this statute on proof that he had transported an automobile across State lines after purchasing it with a check he represented as good but knew to be worthless. Admitting the transportation, he contends that, although obtained through false pretenses, the ownership of the car with the incident right of possession passed to him before he removed it from the owner's possession and, therefore, the car in his hands was never "stolen" — that a "stolen" car is one taken through larceny only, but that getting title by false pretenses is not larceny. His offense is but a State crime, he adds. Two instances of such conduct are pleaded in the indictment. We need not recount the evidence because, in our opinion, the appellant violated the statute even if title to the car became his before he drove it from the State.

This is the statute:

"§ 2312. Transportation of stolen vehicles. Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both."

The Circuits have divided in their construction of "stolen" in this section. The Fifth, Eighth and Tenth have synonymized the word with larceny. Murphy v. U. S., 5 Cir., 1953, 206 F.2d 571; Ackerson v. U. S., 8 Cir., 1950, 185 F.2d 485; Hite v. U. S., 10 Cir., 1948, 168 F.2d 973. The same conclusion was reached in this Circuit by a District Court in South Carolina and in Maryland. Ex parte Atkinson, D.C.E.D.S.C. 1949, 84 F.Supp. 300; United States v. Turley, D.C.M.D.1956, 141 F.Supp. 527. Contra, the Second, Sixth and Ninth Circuits have refused to find "stolen" to be conterminous with larceny. United States v. Sicurella, 2 Cir., 1951, 187 F.2d 533, 534; Collier v. U. S., 6 Cir., 1951, 190 F.2d 473, 477; Smith v. U. S., 9 Cir., 1956, 233 F.2d 744. As did the Court of Appeals for the Sixth, we adopt the definition given by Judge Miller in United States v. Adcock, D.C.W.D.Ky., 1943, 49 F.Supp. 351, 353 "that the word `stolen' is used in the statute not in the technical sense of what constitutes larceny, but in its well known and accepted meaning of taking the personal property of another for one's own use without right or law * * *", contemplating, of course, an intent to deprive the owner of it permanently. It includes what Blackstone phrases as the "cozening of another by artful means".

Of course, a contrary intent not appearing, a Federal criminal statute using a word known to the common law borrows the common law sense of the term. Hite v. U. S., 10 Cir., 1948, 168 F.2d 973. But while "stolen" is constantly identified with larceny, the term was never at common law equated or exclusively dedicated to larceny. "Steal" (originally "stale") at first denoted in general usage a taking through secrecy, as implied in "stealth", or through stratagem, according to the Oxford English Dictionary. Expanded through the years, it became the generic designation for dishonest acquisition, but it never lost its initial connotation. Nor in law is "steal" or "stolen" a word of art. Blackstone does not mention "steal" in defining larceny — "the felonious taking and carrying away of the personal goods of another" — or in expounding its several elements. IV Commentaries 229 et seq.

Judge Hammond in United States v. Stone, C.C.W.D.Tenn.1881, 8 F. 232, 247, concluded, "I do not find the word `steal' used in defining larceny in any of the common-law authorities cited by Mr. Bishop, or elsewhere, from Lord Coke down", and again, "* * * it is not a technical word, in the strict sense of that term, but a common word applied to almost any unlawful taking, without regard to exactness of use or accurate technical terminology." See, too, United States v. Jolly, D.C.W.D.Tenn.1888, 37 F. 108, 111. The Fifth Circuit, though taking a view opposed to ours on the point now on appeal, has said in another connection, "Stealing, having no common law definition to restrict its meaning as an offense, is commonly used to denote any dishonest transaction whereby one person obtains that which rightfully belongs to another * * *." Judge Holmes in Crabb v. Zerbst, 5 Cir., 1938, 99 F.2d 562, 563, 565. Black's Law Dictionary, 3d ed., gives "steal" as denotive of a taking by false pretenses or by embezzlement or by larceny.

But, regardless of what significance the common law, the courts, or the lexicologists have ascribed to "stolen", decisive here is the meaning that the Congress attributed to it. The Congressional intent is disclosed by the contemporaneous use of the same expression in a related statute. A near parallel is section 659 of title 18,...