Davidson v. United States

• Decision Date: 20 September 1932
• Docket Number: No. 9446.,9446.
• Citation: 61 F.2d 250
• Parties: DAVIDSON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

61 F.2d 250 (1932)

DAVIDSON et al. v. UNITED STATES.

No. 9446.

Circuit Court of Appeals, Eighth Circuit.

September 20, 1932.

William G. Lynch, of Kansas City, Mo. (Horace Guffin, of Kansas City, Mo., on the brief), for appellants Davidson and Brummell.

Bert W. Sheets, of Kansas City, Mo., for appellant Weber.

A. B. Lovan, Asst. U. S. Atty., of Kansas City, Mo. (William L. Vandeventer, U. S. Atty., of Kansas City, Mo., on the brief), for the United States.

Before GARDNER and SANBORN, Circuit Judges, and NORDBYE, District Judge.

NORDBYE, District Judge.

The appellants, Davidson, Brummell, and Weber (hereinafter called defendants), were indicted with two other individuals, Gillette and Latimer. The first count of the indictment charges a conspiracy to violate the National Motor Vehicle Theft Act (18 USCA § 408). The second count charges that on or about March 31, 1931, the defendants transported in interstate commerce from Tulsa, Okl., to Kansas City, Mo., a certain stolen motor vehicle. The third count charges that on or about April 1, 1931, at Kansas City, Mo., the defendants did "wilfully, unlawfully, knowingly and feloniously receive, conceal and store one Buick sedan, motor No. 2,649,000, which had theretofore been stolen at Hominy, Oklahoma, on the 23rd day of March, 1931, and transported in interstate commerce from Tulsa, Oklahoma, to Kansas City, Jackson County, Missouri, and the said Fred A. Davidson, Ed Brummell, Tommie F. Gillette, Cecil J. Latimer and John Weber, well knowing at the time of said receiving, concealing and storing, that the Buick sedan, Motor No. 2,649,000, as aforesaid, had been theretofore stolen; contrary to the form of the statute in such cases made and provided and against the peace and dignity of the United States of America."

Davidson and Brummell were found guilty on the first and third counts. Weber was found guilty on the first and second counts. Gillette was found guilty on the third count and there was a disagreement on count 1. Latimer was found guilty on all three counts. Appeals of Gillette and Latimer have been dismissed, leaving before the court at this time only the appeals of Davidson, Brummell, and Weber.

Fred A. Davidson and Ed Brummell were respectively constable and deputy constable of Brooking township, Jackson county, Mo. Brummell operated a filling station, and Davidson was engaged in the dairy business. Gillette was employed as an automobile salesman by a motor company at Kansas City. Weber was by trade an auto mechanic. Latimer had, at one time, worked at the Ford Plant in Kansas City, and had known Gillette since 1925. The evidence indicates, and there is no testimony to the contrary, that of all the defendants on trial, Davidson knew only Brummell, and that Brummell knew only Davidson and Gillette. Gillette was acquainted only with Latimer and Brummell, while Weber knew Latimer, but he had never met Davidson, Brummell, or Gillette before his arrest. Latimer was acquainted only with Gillette and Weber.

The automobile in question was stolen from an Indian girl, Mary White Horn, on March 23, 1931. She was driving her father's car on the streets in Hominy, Okl., at 10:30 p. m., when a dark-blue Chevrolet sedan forced her to the curb. There were four men in the sedan. Two got out of the sedan, and at the point of revolvers, forced the girl to abandon her car. The two then got into her car and drove away, the other two driving away in the Chevrolet sedan. The Indian girl did not identify any of the defendants on trial as being any one of the persons connected with the theft of her car. About April 6, 1931, the stolen car was found in Kansas City, Mo., in possession of one Jones. The defendants Davidson and Brummell had sold the car to one Bordy, and Bordy sold it to Jones. The testimony for the government indicates that the car was a five-passenger Buick sedan, reasonably worth $1,200. Davidson and Brummell sold it to Bordy for $700. The purchaser gave Davidson a check for $700 in payment of the car. Before the check was cashed, it was ascertained by the purchaser that the car was stolen at Hominy, Okl., and payment on the check was stopped, and when Davidson and Brummell came to the purchaser's place of business to learn why payment had been stopped on the check, they were arrested. When questioned by the arresting officers as to the sale of this car, they told the officers that in the performance of their duties as constable, this car was picked up on the highway in early January, 1931, and that it had been stored for some ninety days in a garage at Raytown, which was located in the township of which Davidson was constable. These two defendants told the officers that storage charges which had accrued on the car amounted to $120, and that a justice of peace in that township issued an execution against the car and that the sale made by them was in pursuance thereto. It was disclosed by the evidence that when the car was sold, Davidson executed a paper which purported to be a constable's bill of sale on an execution issued by the justice of peace on account of storage charges. This instrument was signed by Davidson as constable, and was turned over to the purchaser so that the latter would be able to get title to the car.

An investigation by arresting officers indicated that the story told by Davidson and Brummell was false — that the garage in which these defendants stated the car had been in storage since January, 1931, had not been in existence that long — and later Davidson and Brummell admitted that their story was fabricated, and then offered to disclose to the officers their entire connection with this car. They informed the officers that the car was first brought to Brummell, who conducted a filling station, by one Tommie Gillette, a few days before the car was sold; that Brummell had made arrangements with Gillette to sell the car for him and to receive a commission for so doing. Gillette was then questioned by the officers. He first denied knowing anything about the car, but later stated that he had received the car from Cecil J. Latimer, and that he (Gillette) had taken the car to Brummell. Gillette contended that he was authorized by Latimer to sell the car, but in that he (Gillette) was employed by an automobile agency, it was not feasible for him to dispose of the car at the place of business where he was employed, and consequently, had contacted with Brummell as a prospective purchaser, and then had made arrangements that Brummell should endeavor to find someone who would purchase the car. Latimer was then questioned, and after first denying any knowledge of the car in question, and denying that he had ever been in Oklahoma, admitted that he had come into possession of this car through one John Weber; that Weber had informed him that he had a "hot" car in Oklahoma which had been taken away from an Indian and that he (Latimer) went with Weber to Oklahoma in Weber's car, and that he drove the stolen car from Oklahoma to Kansas City, and that Weber came back from Oklahoma in his own car. Weber was then arrested, and after stoutly denying any knowledge of the stolen car, when confronted with the information given by the other co-defendants, admitted that he had told Latimer that he had a "hot" car in Oklahoma and that he requested Latimer to go with him to Oklahoma to drive the car back to Kansas City.

All the defendants testified in their own behalf at the trial. Both Weber and Latimer testified that prior to the making of the trip to Oklahoma, they met a man by the name of Kirk, who told them about a car that he had in a garage in Tulsa, Okl., and that Kirk had asked Latimer and Weber to go with him to Oklahoma and to get the car and dispose of it, and that any sum realized over and above $650 could be retained as a commission. Kirk was not at the trial, and his existence depends entirely upon the truthfulness of Weber and Latimer. Both Weber and Latimer denied that they had participated in the stealing of this car, and contended that they did not know the car had been stolen. They also denied that they had informed the officers that they knew that this was a "hot" car. Weber contended that he merely took Latimer and Kirk in his car to Tulsa and never saw the car that Kirk and Latimer took back to Missouri. He also contended that his only purpose in going to Oklahoma was to obtain some automobile tools to enable him to go to work with a motor company with whom he had obtained employment. It was his testimony that although Kirk and Latimer rode with him to Tulsa, he (Weber) drove back to Kansas City alone in his own Chevrolet car. Latimer stated that he and Kirk drove the car back from Tulsa, and then the car was left with Latimer and he stored it in a garage at 1812 Independence avenue, Kansas City. Latimer contended that the car was stored there at the instance of Kirk. Apparently, the car had Oklahoma license tags on it at the time that Latimer drove it from Tulsa. Gillette testified that during the first days in April, 1931, Latimer came to the motor company where he was employed and told him that he had a car that he would like to sell, and informed Gillette that the car was in a garage on Independence avenue, Kansas City. Gillette denied that he had any knowledge or information that the car had been stolen, and he contended that he called up Brummell and told him that he had a Buick sedan for sale and asked Brummell if he could use it. Gillette contends that later on he went down to Brummell's filling station, and that Brummell, after examining the car, concluded that he would not be able to purchase it himself, but made arrangements with Gillette to find a purchaser, and to obtain a commission for so doing. Gillette then contended that he became ill and was not available, and Brummell proceeded to find a purchaser. He called upon Davidson to assist him. When a purchaser was found, it is contended by Brummell and Davidson, that...