Cox v. United States
| Decision Date | 28 April 1938 |
| Docket Number | No. 11028.,11028. |
| Citation | 96 F.2d 41 |
| Parties | COX v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Powhatan H. Jackson, of Kansas City, Mo. (Sloane Turgeon, of Kansas City, Mo., on the brief), for appellant.
Otto Schmid, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., of Kansas City, Mo., on the brief), for the United States.
Before GARDNER, SANBORN, and THOMAS, Circuit Judges.
The appellant was tried and convicted upon the first count of an indictment charging that on or about January 5, 1936, he sold to Carl V. Powell, in Newton county, Mo., a 1935 model Chevrolet four-door sedan, motor No. 5183599, serial No. 5EA06 — 13962, which had been stolen from O. S. French, the owner, at Pittsburg, Kan., on January 4, 1936, and was moving in interstate commerce, and which the appellant knew had been stolen. National Motor Vehicle Theft Act, § 408, tit. 18, U.S.C., 18 U. S.C.A. § 408.
The evidence of the government upon the trial showed that on Saturday, January 4, 1936, at some time between the hours of 6 and 9 o'clock in the evening, at Pittsburg, Kan., the Chevrolet four-door sedan described in the indictment was stolen by some unidentified person from O. S. French; that on Sunday afternoon, January 5, 1936, the appellant — who had on the previous Saturday afternoon agreed to procure and sell to Carl V. Powell a Chevrolet sedan which the appellant intimated would be stolen within seventy-five miles of Joplin, Mo. — delivered to Powell, in Newton county, Mo., a 1935 model Chevrolet four-door sedan under circumstances clearly indicating that the automobile was a stolen automobile and that the appellant knew that it had been stolen. The evidence also showed that the appellant gave to Powell a forged bill of sale of the automobile, purporting to be signed by Mrs. Tom Strickland of Eureka Springs, Ark., which described the automobile as a 1935 Chevrolet sedan, motor No. 5400365, serial No. E3A06 — 44957; and that the application for a certificate of title for the automobile, filed by Powell with the secretary of state of the state of Missouri, described it as a 1935 model Chevrolet, engine No. 5400365, and serial No. 3EA06 — 44957.
Aside from the testimony that the automobile sold to Powell in Missouri on Sunday was of the same model, type, and style as the automobile stolen from French in Kansas on Saturday, that the French automobile was stolen shortly after the appellant agreed with Powell to procure for him such an automobile within a radius of seventy-five miles of Joplin, and that Powell subsequently entered a plea of guilty in the federal court based upon his possession of the automobile sold by the appellant to him, there is no evidence to justify even a suspicion that the automobile stolen from French was the same automobile which was sold to Powell.
Proof that an automobile of a well-known and widely distributed type and model is stolen in one state on Saturday and that a similar car is sold and delivered in an adjoining state on the following day is not sufficient evidence upon which to base a finding that the automobile stolen was the automobile sold, or a finding that the automobile sold was an automobile which had moved in interstate commerce and was still a part of interstate commerce. This is because the evidence, taking that view of it most favorable to the government, is not inconsistent with the hypothesis...
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