Davilman v. United States, 10965.

• Decision Date: 17 February 1950
• Docket Number: No. 10965.,10965.
• Parties: DAVILMAN v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

180 F.2d 284 (1950)

DAVILMAN v. UNITED STATES.

No. 10965.

United States Court of Appeals Sixth Circuit.

February 17, 1950.

Charles E. Stevenson, Covington, Ky., for appellant.

Norris Reigler, Louisville, Ky., (David C. Walls, Norris W. Reigler, on the brief), for appellee.

Before HICKS, Chief Judge, and MARTIN and McALLISTER, Circuit Judges.

PER CURIAM.

This is an appeal in forma pauperis from the denial by the district court of a motion to vacate its judgment and sentence.

The appellant, Louis Davilman, and his wife, Maud Wooten Davilman, upon conviction by jury verdict for violation of the Dyer Act, in transporting a stolen automobile from Las Vegas, Nevada, to Owensboro, Kentucky, were each sentenced to five years imprisonment. The record does not disclose that either Davilman or his wife made a motion for a new trial; but some eight months after he entered upon the service of his sentence, appellant filed a motion in the district court to vacate his sentence, which was overruled.

On May 31, 1949, some eighteen months after his imprisonment, appellant, through his attorney, filed in the district court a "Motion to Vacate Judgment and Sentence Pursuant to the Provisions of Title 26, sic section 2255, U.S.C.A." The motion was rested upon the argument that the automobile had been rented in Las Vegas, Nevada; and, although not returned according to the rental contract but appropriated to their own use, the defendants could not lawfully be punished for violation of the Dyer Act, section 408, now §§ 2311-2313, Title 18 U.S.C.A., for having transported in interstate commerce a motor vehicle "knowing the same to have been stolen". Portions of the record in a district court case, styled "United States v. Patrick O'Carter" the citation to which was not given were filed in support of the motion.

We think the judgment of the district court in rejecting the fine-spun distinction urged in the motion was correct. Judge Miller, then district judge but now a member of this court, wrote clearly and logically in United States v. Adcock, D.C. W.Ky., 49 F.Supp. 351, 353, the reasons for rejecting the strained construction which Davilman seeks to have placed upon the language of the Dyer Act. He pointed out that the word "stolen" is used in the federal 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, and that such taking can exist whenever the intent to do so comes into existence and is deliberately carried out regardless of how the party so taking the automobile may have originally come into possession of it.

In addition to pressing this point on appeal, the able attorney appointed by this court at the request of appellant to represent him here brings forward and argues forcefully that the district court abused its discretion in declining to order separate trials of appellant and his wife, in the circumstances where the wife had made a confession implicating her husband in the crime; and that there was no evidence whatever adduced at the trial which connected appellant with the crime, unless the confession of his wife was considered against him. It is insisted that, while the district judge properly ruled that the confession of appellant's wife was not to be considered as evidence against him, the charge of the court actually directed the jury to consider facts which rested exclusively upon the confession of the wife. There was no proof that appellant was in Las Vegas, Nevada, on March 5, 1947, when his wife rented the automobile for a period of two days. The only substantial evidence against the appellant was that the car was...