Johnson v. United States

• Decision Date: 04 April 1952
• Docket Number: No. 14409.,14409.
• Citation: 195 F.2d 673
• Parties: JOHNSON v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

195 F.2d 673 (1952)

JOHNSON v. UNITED STATES.

No. 14409.

United States Court of Appeals Eighth Circuit.

April 4, 1952.

George F. Edwardes, Texarkana, Ark., for appellant.

Charles A. Beasley, Jr., Asst. U. S. Atty., Fort Smith, Ark. (R. S. Wilson, U. S. Atty., and Hugh M. Bland, Asst. U. S. Atty., Fort Smith, Ark., on the brief), for appellee.

Before GARDNER, Chief Judge, and RIDDICK and COLLET, Circuit Judges.

GARDNER, Chief Judge.

Appellant was tried on an indictment containing two counts charging him with a violation of the Motor Vehicle Act, Title 18 U.S.C. § 2312. Count 1 in substance charged that on or about July 10, 1950, John M. Johnson, Jr., appellant herein, transported a stolen motor vehicle; to-wit, a 1949 Ford Coach, Motor No. 98 EA 2433-45, the property of Mrs. Bert Barnes, Fort Worth, Texas, from Texarkana, Arkansas to Texarkana, Texas, knowing the said vehicle to have been stolen. The second count in substance charged that on or about July 4, 1950, he transported a stolen motor vehicle; to-wit, a 1949 Ford Coach, Motor No. 98 EA 243345, the property of Mrs. Bert Barnes, Fort Worth, Texas, from Fort Worth, Texas to Texarkana, Arkansas, knowing the said vehicle to have been stolen. We shall refer to appellant as defendant.

The evidence of the government showed that on or about July 6, 1950, one Clyde Bell stole a motor vehicle claimed to be the one described in the indictment, from a parking lot back of a theater building in Fort Worth, Texas. He was alone at the time he stole the car. Bell was the sole witness produced by the government with reference to the act of stealing and transporting. At the time he was called as a witness he was serving a sentence in a penitentiary in Colorado and according to his own testimony he had served some five or six penitentiary sentences. Not having a key for the stolen vehicle he wired the ignition and drove it out of the parking lot into the streets of Fort Worth, Texas. He soon picked up the defendant, although there was no evidence of preconcert of action. He drove defendant about the streets for a time and then they parted and were not again together until some three days later when Bell "ran into him" at the Salter Hotel in Fort Worth, Texas, where Bell was living. Bell testified that following this meeting, "we left and come to Texarkana." Bell was driving the car and Johnson accompanied him. When they crossed into the State of Arkansas at Texarkana, they were halted by police officers. Johnson then attempted to get out of the car but Bell told him to keep still; that he was going to make a run for it. In this regard Bell testified: "I told him to keep still; that I was going to try to make a run for it, and about that time the officers started shooting and I don't recall just what all took place then." Bell drove the car across the state line back into the State of Texas. The officers shot into the car a number of times but Bell drove it down into a part of Texarkana lying in Texas, where he made his escape. Johnson got out of the car before it stopped. It does not appear where Johnson went but it appears that Bell was later arrested at some point in Colorado.

Bell did not tell Johnson that the car was stolen. As to this matter he testified as follows: "I didn't figure I had to tell Johnson I stole it. I did not tell him straight out that I stole that car, no." There is no evidence that Johnson at any time had any control of the car during its transportation, or that he made any claim to the car or that he bought any gas for use in the car on the trip. There was considerable confusion in the testimony with reference to the description of the car. Some called it a two-door; some called it a two-door sedan; some called it a two-door coach, and one witness called it a coupe. There was also some confusion as to its color.

At the close of the government's testimony defendant interposed a motion for a judgment of acquittal on two grounds. The first went to the insufficiency of the proof as to the identity of the motor vehicle as described in the indictment, and the second challenged the sufficiency of the evidence to show that defendant had participated in either the theft or transportation of the car or that he had aided and abetted therein. The court sustained the motion as to Count 1 and in doing so said: "I think it (the evidence) is too flimsy to assume that he aided, abetted or assisted, when he was not under the wheel and when it all happened in just a moment there, and when he was not in direct command of the automobile. I don't think one can say he aided, abetted or assisted in that run across the line when he was not driving, and he was not telling the driver to do it. On the other hand, the undisputed evidence was that he was trying to get out of there. I am going to sustain your motion for judgment of acquittal on Count 1."

When counsel began their argument to the jury, the court in referring to Count 1, among other things said: "The Court does not think that Count 1 should be submitted to the jury, because there is no substantial evidence to the effect that the defendant had aided and assisted Clyde Bell in the transportation of that automobile across the line here in Texarkana. Bell seemed to act on his own initiative, while the officers were shooting at the car and at him, and I don't think I can fairly say that the defendant had any part in aiding, assisting or abetting in that transportation of the automobile across the state line in this city. The Court will let the case go to the jury on Count 2."

The jury returned a verdict of guilty as to Count 2 and from the judgment entered thereon this appeal is prosecuted. Appellant seeks reversal on the ground that the court erred in denying his motion for acquittal interposed at the close of all the testimony, urging the same grounds as presented by his motion for acquittal.

It is strenuously argued that the evidence was insufficient to identify the car which was actually stolen and transported as the car described in the indictment. Appellant relies very strongly upon the decision of this court in Cox v. United States, 8 Cir., 96 F.2d 41. The facts in the two cases are, however, very dissimilar. In the instant case...