O'dell v. United States, 5732.

• Decision Date: 21 January 1958
• Docket Number: No. 5732.,5732.
• Citation: 251 F.2d 704
• Parties: Claude L. O'DELL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

251 F.2d 704 (1958)

Claude L. O'DELL, Appellant, v. UNITED STATES of America, Appellee.

No. 5732.

United States Court of Appeals Tenth Circuit.

January 21, 1958.

Robert S. Eberhardt and Elmer Lee Hamby, Denver, Colo., for appellant.

James C. Perrill, Asst. U. S. Atty., Denver, Colo. (Donald E. Kelley, U. S. Atty., Denver, Colo., was with him on the brief), for appellee.

Before BRATTON, Chief Judge, and PICKETT and LEWIS, Circuit Judges.

BRATTON, Chief Judge.

Drawn under 18 U.S.C.A. § 2312, the information in this case charged that appellant transported a certain stolen automobile from Los Angeles, California, to a point near Salida, Colorado, knowing that it had been stolen. The jury found appellant guilty; the court sentenced him to imprisonment; and he appealed.

The first contention advanced on behalf of appellant is that the court erred in denying the motion for a directed verdict of not guilty. The substance of the argument in support of the contention is that the word "stolen" as used in the statute, supra, is limited to the taking of a motor vehicle which amounts to common-law larceny; that it does not include embezzlement or other felonious taking not constituting common-law larceny; and that the evidence failed to show facts constituting common-law larceny. It is now settled law that the word "stolen" as used in the statute is not limited to the taking of an automobile or other motor vehicle which constitutes common-law larceny. It includes any felonious taking of a motor vehicle with intent to deprive the owner of the rights and benefits of ownership, even though it may not constitute common-law larceny. United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430. The case of Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356, upon which appellant places strong reliance was different. It presented for determination an entirely different question. The question there was the construction to be placed upon the word "organize" as used in the so-called Smith Act, 54 Stat. 670, 18 U.S.C.A. § 2385. And there is no indication in the case that the court intended to enunciate a general rule of interpretation which would have the effect of narrowing or restricting the breadth of the word "stolen" as used in the Dyer Act. Appellant also places reliance upon Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905. But that case is so decisively different from this one that discussion of it is unnecessary.

Viewed in the light of the general rule to which reference has been made, we come to the question whether the evidence was sufficient to withstand the motion for a directed verdict and to sustain the verdict of the jury. Evidence was adduced which tended to establish these facts. Cathy's Driveaway in Chicago was engaged in the business of securing drivers for automobile dealers desiring to have automobiles transported from Chicago to various points of destination throughout the country. The company did not own the automobiles transported. They were owned by others. On August 13, 1956, appellant went to the place of business of the company and there entered into a written bailment agreement to drive the automobile described in the agreement and in the information in this case from Chicago to San Francisco. The automobile belonged to U. S. Auto Leasing Company of Chicago and was to be driven from Chicago to San Francisco. Upon reaching San Francisco, it was to be delivered to Neil McNeil. The agreement recited that Route 30 was to be followed to Salt Lake City and then Route 40 to San Francisco. Later in the day, or on the following day, U. S. Auto Leasing Company delivered the automobile into the possession of appellant for transportation to San Francisco and delivery there. Appellant departed with the automobile; did not subsequently communicate with Cathy's Driveaway; did not communicate with U. S. Auto Leasing Company; did not communicate with McNeil; and did not deliver the automobile to McNeil. On or about August 20, he was in Richmond, Missouri, with an automobile in his possession similar in description to the one delivered to him for transportation to San Francisco. On December 31, he went to the home of a friend in Torrance, Los Angeles County, California, with an automobile in his possession likewise similar to the one delivered to him for such transportation. On March 6, 1957, he was apprehended at a point near Salida, Colorado. At the time of apprehension, he had in his possession the automobile which U. S. Leasing Company had delivered to him for transportation and delivery; he took from the glove box of the automobile a copy of the bailment agreement; and he had on his person a credit card issued to R. L. Wattel, 17 Mira Mar, Long Beach, California. He stated that his name was Wattel; that the automobile belonged to a driveaway company; and that Mr. O'Dell had picked him up when he was hitchhiking and turned the automobile over to him to be transported to the State of Washington. At the time the automobile was delivered to appellant, it registered mileage of approximately 8,800; and at the time of the apprehension of appellant it registered about 37,000 or 38,000 miles. On the occasion of his apprehension and on later occasions, appellant made certain exculpatory statements and explanations but they were not conclusive. They were for the jury. Considered as...