Collier v. United States, 11320.

• Decision Date: 10 July 1951
• Docket Number: No. 11320.,11320.
• Citation: 190 F.2d 473
• Parties: COLLIER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

190 F.2d 473 (1951)

COLLIER et al. v. UNITED STATES.

No. 11320.

United States Court of Appeals Sixth Circuit.

July 10, 1951.

Ben C. Welch, Memphis, Tenn., for T. O. Balsinger.

Hugh K. Davidson, Detroit, Mich., for Hugh K. Davidson.

Thomas C. Farnsworth, Memphis, Tenn. (John Brown, Thomas C. Farnsworth, and Charles G. Black, all of Memphis, Tenn., on the brief), for appellee.

Before SIMONS, MARTIN and McALLISTER, Circuit Judges.

MARTIN, Circuit Judge.

The two appellants, Collier and Balsinger, were convicted on a two-count indictment charging them jointly with violation of the National Motor Vehicle Theft Act, commonly called the Dyer Act, 18 U.S.C. §§ 2312 and 2313. On appeal from the judgment of sentence entered on the jury's verdict, they assert that reversible error was committed by the trial judge in declining to grant their respective motions for directed verdicts of not guilty.

The first count of the indictment charged that the two accused men, knowing the motor vehicle, a Ford coach, to have been stolen, transported it in interstate commerce from East Alton, Illinois, to Trenton, Tennessee. The second count charged that they received, concealed, bartered and sold the stolen motor vehicle, which was moving in interstate commerce between the aforementioned places, and that they then knew the motor vehicle to have been stolen.

Appellants state that the precise question presented is whether the Ford automobile was a stolen vehicle at the time they admittedly transported it from East Alton, Illinois, to Trenton, Tennessee. They insist that the car was not a stolen vehicle at the time, for the alleged reason that they had not committed larceny in obtaining it. They contend that both possession of the vehicle and the property interest therein had been voluntarily turned over to Collier by Leland Turner, who had bought the car upon a conditional sales contract with title reserved in the seller. There was conflict in the testimony of Turner and that of the two appellants as to the conditions upon which Turner delivered the car to Collier.

The credibility of the witnesses was, of course, a question for the jury; and the jury had the right to accept as true Turner's version of the transaction. His testimony, therefore, will be first reviewed.

In August, 1948, Turner had purchased from Cassens and Sons a 1941 Ford Coach under a conditional sales contract. He had made a down payment of $350 and had assumed to pay $846 more in eighteen consecutive equal monthly instalments of $47. Becoming unemployed in early 1949, he found it difficult to continue paying the monthly instalments so he requested Cassens and Sons to permit him to attempt to dispose of the automobile. Permission was granted him to do so. Whereupon, he went to several used car lots in Alton, Illinois, but was unable to find anyone who would pay him as much for the car as he owed on its purchase price. Finally, on either a Friday or a Saturday early in February, he went to Dailey's used car lot in Alton, where he met and discussed a possible sale with Collier.

Collier told him that he would have to talk to his brother. Later, he telephoned Turner to bring the automobile out to the Blue Moon Cafe so that his brother could see it. Turner complied and talked to Dailey, who "was supposed to be" Collier's brother. Dailey did not buy the automobile; but, on the next day, Collier telephoned Turner and asked him to bring the automobile over to the used car lot, which he did. Thereupon, Collier informed Turner that he would buy the car from Cassens and "pay it off" for him, and that he would give Turner ten or fifteen dollars over and above what he owed Cassens. Collier also promised Turner a job on the used car lot and instructed him to report for work on the morning of the next day — Monday.

Collier furnished Turner a car in which to drive back and forth until he could get on his feet. Turner left with Collier the Ford automobile which he was trying to sell. Questioned as to whether Collier asked him to sign a bill of sale, Turner replied in the negative, stating that "he just asked me to sign a paper, to leave my name there, you know, where he would remember my name to pay it off." Turner said he signed a paper with no writing or printing on it, to which he paid little attention. He admitted his signature when shown a purported bill of sale, however; but said that Collier did not tell him that it was a bill of sale. He insisted that when he signed the piece of paper there was no writing on it. On cross-examination, he was asked if, when he left the Ford automobile with Collier, the understanding was that Collier would sell it for him. He replied in the negative, saying that the understanding was that Collier would "pay Cassens and Sons off" and that he would sell Collier the automobile. He swore that Collier was supposed to go on the next day, Monday, "pick up the title" on the automobile and "pay Cassens off"; and that he did not expect the automobile to be returned to him if Collier bought it. When Turner went to the used car lot on Monday, Collier was not there, for he and Balsinger had left for Tennessee with Turner's Ford car. Moreover, Turner did not get the promised job.

Collier, testifying in his own behalf, said that Turner gave him a bill of sale in the presence of Balsinger and voluntarily turned the car over to him; and that he thought the car was worth what Turner owed on it. He said that he told Turner: "I will try and sell your car for you, or I might take it myself, and if I do, I will pay off the balance. And if I sell it, I will pay it off, and whatever it is sold over that I will keep it." He said that the transaction occurred on Sunday, and that he told Turner to report for work on Tuesday morning; and that he let Turner take a car for use in the meantime, as mechanics working for Dailey always had some kind of transportation.

Collier testified that, after he received Turner's automobile, he and a friend who had a station wagon and trailer decided to take the cars out of town because the market was higher, sell the motor vehicles and return and pay for them, making whatever profit accrued from the transactions. He said that he and Balsinger transported Turner's Ford automobile to Trenton, Tennessee, after Balsinger had obtained Tennessee registration for the vehicle in Collier's name, and sold it for $450 to a filling station operator, McCann. He stated that he would not let Balsinger sell the station wagon because the offers for it were insufficient to pay the man from whom they had procured it, and that it was left with Balsinger in Memphis, to which city they went from Trenton. He declared that Balsinger said he would "pay the mortgage off on the Ford and give the station wagon back to its owner, or sell it and give him the money." Collier asserted that he had intended to stay in Memphis for a while, but that, business being bad, he went on to California with a man and wife who were with him and Balsinger. He admitted that he has never paid anything on the Ford automobile, which he procured from Turner.

Balsinger was arrested in Memphis. His testimony disclosed that he happened to be on Dailey's used car lot on the Sunday when the deal between Turner and Collier was consummated, and that a bill of sale was signed by Turner in his presence. He said that he was in the employ of a half brother of Collier's employer, Dailey. Balsinger left with Collier for Tennessee on the Sunday night after Turner had signed the paper. The two men stopped at Union City, Tennessee, where Balsinger bought a Tennessee license, issued in Collier's name, in the County Register's office. He signed Collier's name to the registration receipt. They proceeded from Union City to Trenton, and drove into a filling station to have a flat tire repaired and to buy gasoline.

After five or ten minutes' conversation with McCann, the filling station operator, Balsinger sold him the Ford car for $450, which was $150 less than the amount owed on it by Turner to Cassens and Sons. McCann gave him a check for the $450, payable to Collier, which with the latter's permission he endorsed and had cashed by the Trenton Produce Company to which he was identified by McCann. Balsinger said that he wired his wife $300 of the proceeds of the sale, gave Collier some $25, and kept the rest of the money for their expenses. He admitted that he knew there was a mortgage of some $600 on the Ford automobile sold by him; that he has made no payment on it; and has made no restitution whatever. He stated that he had discussed with Collier the sale of the automobile. Asked if, knowing that Turner owed around $600 on the Ford car, he nevertheless went from Illinois to Trenton, Tennessee, and sold it for $450, he admitted that he did. The district attorney questioned him: "And you were going to take the $150 out of your own pocket and pay Mr. Turner back?" He replied: "Well, no, he would settle for less...