McAdams v. United States

• Decision Date: 14 November 1934
• Docket Number: No. 9960.,9960.
• Parties: McADAMS v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

74 F.2d 37 (1934)

McADAMS v. UNITED STATES.

No. 9960.

Circuit Court of Appeals, Eighth Circuit.

November 14, 1934.

G. W. Botts, of De Witt, Ark., and A. G. Meehan and John W. Moncrief, both of Stuttgart, Ark., for appellant.

Fred A. Isgrig, U. S. Atty., of Little Rock, Ark., and Gordon Frierson, Asst. U. S. Atty., of Jonesboro, Ark.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

SANBORN, Circuit Judge.

From a conviction upon an indictment containing eleven counts charging the defendant with having received and with having sold stolen automobiles moving in interstate commerce, knowing the same to have been stolen, this appeal is taken. The statute involved is the National Motor Vehicle Theft Act, section 408, title 18, U. S. C. (18 USCA § 408), which, among other things, provides:

"Whoever shall receive, conceal, store, barter, sell, or dispose of any motor vehicle, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be punished," etc.

The defendant was a dealer in secondhand cars at De Witt, Ark. In February, 1933, six stolen automobiles, which had been transported from other states into Arkansas, were located at De Witt. One of them was still in the defendant's possession. The others he had apparently acquired within a short time after they had been stolen, and each of them had been sold by him to some person living at or near De Witt. The motor numbers on the cars had been cleverly changed. There was no suggestion that the defendant himself had stolen the cars or that he had changed the numbers on them. Upon the trial the government relied, for conviction, upon the evidence of his acquisition of the fruits of recent crime and the circumstances surrounding such acquisition. The defendant denied that he had any knowledge that the cars were stolen cars, and contended that he had purchased them in the ordinary course of his business from persons claiming to own them, and had dealt with them openly and in good faith, and had sold them to his customers, many of whom he had known for years. The evidence indicated that he had dealt with these cars in the same manner that he dealt with other secondhand cars; that he had received bills of sale for most of them, but from persons he did not know and could not locate; that he sold them openly to persons living in his community; that, when the cars were taken from them to be restored to their owners, he made restitution and exhausted his financial resources in so doing. There was evidence that he bore a good reputation in the community where he had lived for many years.

The government offered no evidence to show who stole the cars, who transported them, when they arrived in Arkansas, or through whose hands they passed before they reached the defendant, and it is impossible to say from the record whether they were driven directly to the defendant's place of business by those who transported them or whether they were delivered to some other person or persons who first altered the numbers of them and then arranged for their sale to the defendant, although, in view of the change in the motor numbers, the latter hypothesis would seem to be the more probable.

The defendant, at the close of all of the testimony, made no motion for a directed verdict upon the ground that there was no substantial evidence to sustain a conviction. Hence the question of the sufficiency of the evidence is not properly before us. Ayers v. United States (C. C. A. 8) 58 F.(2d) 607.

The defendant did, however, at the close of the case, request the court to give the following instruction:

"Among other things, the burden is on the government to show that the automobiles, at the time they were received, stored, possessed or sold by defendant, were then and there in interstate commerce and transportation."

This request the court refused to give, and it charged the jury as follows upon that point:

"The government has offered proof on each of the cars to show that the cars were stolen and that they were brought into this state from some other state. He (the defendant) doesn't make any denial of this. There is no testimony to dispute the fact that the cars were stolen and that they were transported into this state. He admits that he bought the cars, stored them and that he sold all but one. His defense is that he did not know they were stolen cars at the time he stored them, bought them and stored them and at the time he sold them."

The defendant took an exception to the refusal of the court to give the requested instruction, and has assigned such refusal as error.

Counsel for the government, in their brief, say that, since the automobiles were brought from cities in the states of Tennessee, Louisiana, and Oklahoma, in November and December, 1932, and January, 1933, and were found in the vicinity of De Witt, Arkansas, February 1, and February 2, 1933, and that at some time during that brief interval they had crossed the state lines and had been driven into Arkansas, where they were found and had been bought by the defendant, it must be assumed that they still possessed their interstate character at the time the defendant received and sold them; that to hold otherwise would be to place upon the government the burden of showing the whereabouts of the cars from the time they were stolen until they came into the possession of the appellant, and would have the effect of nullifying the act of Congress.

That, in a case such as this, the government has the burden of proving that the cars at the time they were received and sold by the defendant were still a part of interstate commerce, was held by this court in Davidson v. United States, 61 F.(2d) 250, 255, 256, in which we said:

"Receiving a stolen car that had lost its character as interstate commerce constitutes no crime against the laws of the United States. Wolf v. United States (C. C. A.) 36 F.(2d) 450. The government has totally failed to sustain this burden of proof, and there is no testimony or circumstances in the record that would support a finding that this car was in interstate commerce at the time it was received by these two defendants. In fact, without some testimony indicating that the destination of this car was Brummell and Davidson, it is entirely consistent with the evidence that the interstate character of this car ceased when it was stored in the garage by Gillette at 1812 Independence avenue, Kansas City. * * *

"It is essential to the offense that the property, at the time it is charged that the defendants received or stored it, was moving as, or was a part of, interstate commerce."

The Seventh Circuit, in the case of Wolf v. United States, 36 F.(2d) 450, 452, had previously reached the same conclusion. There the court said:

"In the instant case, there is not a scintilla of evidence to suggest that either defendant stole the car or that either defendant knew of the stolen car's existence until it was in Indianapolis. Neither could have participated in its theft nor its removal from Cleveland to Indianapolis."

In United States v. Di Carlo (C. C. A. 2) 64 F.(2d) 15, it was held that the defendant's possession of the stolen car after transit and in the state of destination was sufficient to create the inference that he received and stored the stolen car at the end of its interstate journey, but in that case it must be noted that the defendant was charged both with transporting and storing the car, and, as the court points out, since the jury were at liberty to find that he transported it in interstate commerce, they might also find that he stored it immediately after he had transported it and while it was still a part of interstate commerce.

We think it is clear that the refusal of the court below to instruct the jury that the burden was upon the government to prove that the cars in question were in interstate commerce when received and sold by the defendant, was an error which entitles the defendant to a new trial.

In view of the fact that there must be a retrial of this case, it seems necessary to mention a few other matters.

The defendant complains of the instructions of the court below with regard to the probative effect of the possession of recently stolen property. In its charge the court said:

"The Court instructs you that the possession of recently stolen property is of itself prima facie evidence that the possessor knows of his guilty possession. However, if he can offer circumstances or proof that he did not know it, by proof of facts that are consistent with his innocence, then of course, that presumption of guilt from the possession of stolen property is overdone. The controlling force of the possession of stolen property grows weaker as the time of possession recedes from the time of the theft. So if this defendant has created in your mind, has offered testimony which creates in your mind a reasonable doubt as to whether he knew that these cars were stolen or not, then he is not guilty of this offense. The burden rests upon the government to prove his guilt beyond a reasonable doubt."

After the jury had been out for about twenty-four hours and had reported that they were unable to agree, the court, on its own motion, gave this instruction:

"There is but one issue of fact in the case really, and that is, did the defendant know at the time he stored and sold the cars that they were stolen. The fact that recently stolen property was in his possession makes a prima facie case against him, unless he gives an explanation which is consistent with innocence."

In fairness to the court, it...