Niederluecke v. United States

• Decision Date: 26 August 1927
• Docket Number: No. 7426.,7426.
• Citation: 21 F.2d 511
• Parties: NIEDERLUECKE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

21 F.2d 511 (1927)

NIEDERLUECKE et al. v. UNITED STATES.

No. 7426.

Circuit Court of Appeals, Eighth Circuit.

August 26, 1927.

James E. Carroll, of St. Louis, Mo., for plaintiffs in error.

C. J. Stattler, Asst. U. S. Atty., of St. Louis, Mo. (Louis H. Breuer, U. S. Atty., of Rolla, Mo., on the brief), for the United States.

Before WALTER H. SANBORN and BOOTH, Circuit Judges, and MILLER, District Judge.

WALTER H. SANBORN, Circuit Judge.

The defendants below were convicted of a violation of the National Motor Vehicle Theft Act (U. S. C. tit. 18, § 408 18 USCA § 408), in that they transported in interstate commerce, on November 16, 1925, two stolen Ford coupés, numbered respectively 10571893 and 11752118, by their own motive power from St. Louis, Mo., to Madison, Ill., when they knew that they had been stolen. The indictment charged the offenses in two separate counts, one for the transportation of each coupé, and the court sentenced William Niederluecke to five years' imprisonment on each count, the terms to run concurrently, and the defendant Gus Niederluecke to three years' imprisonment on each count, the terms to run concurrently. Their counsel argue that many prejudicial errors of law were committed at their trial. At the trial, the defendants admitted that they drove the two Ford coupés from St. Louis to Madison, Ill., on November 16, 1925, but they testified that they did not then know that they had been stolen, and there was no evidence in the case that they had any such knowledge except their possession of them on November 16, 1925, the testimony of Clay Ballew that he owned and lost one of them on October 24, 1925, the testimony of Walter Martins that he owned and lost the other on October 28, 1925, evidence that the defendants rented a garage back of 2901 St. Louis avenue, in the city of St. Louis, from Mr. Kron, its owner, and paid him the rent for it until December 1, 1925, when they notified him that they would not use or pay rent for it thereafter, that a few days prior to December 1, 1925, they turned it over to Lester Henderson and had nothing to do with it thereafter, the testimony of Fred F. Dietz, a member of the Metropolitan Police Department of the City of St. Louis, that on December 7, 1925, he went to the rear of 2901 St. Louis avenue, looked in the window of the garage, saw an automobile, a Ford sedan, three motors, and some tires, that he opened the window and climbed into the garage, took the numbers of the motors, tires, and automobiles there, that, while he was in there, the defendants came up in the rear and shouted, "Oh, Les, it's me; let me in," and he arrested them. The defendants testified that they turned over the garage to Lester Henderson, and that a different lock from that which they used was put on it in November, 1925, that they never stole or had possession of or anything to do with the Ford sedan that Dietz testified he found in it on December 7, 1925. Counsel for the government called as a witness Otto Bueckner who testified that he owned the Ford sedan and lost it on December 6, 1925, from 3500 Morgan street, St. Louis, where he had parked it. All the testimony as to the Ford sedan found by Mr. Dietz on December 7, 1925, was objected to by the defendants and its admission was excepted to. In ruling upon this objection the court said that it was received merely to show the intent with which the defendants on November 16, 1925, twenty-one days before the sedan was found, transported the two Ford coupés from St. Louis to Madison, Ill. At the close of the trial, the defendants had testified that they transported the two Ford coupés to Madison, Ill., on November 16, 1925, but that they did not then know they had been stolen, and there was no testimony or circumstance, except the fact that they had the possession of them on November 16, 1925, that indicated they had such knowledge.

The court charged the jury that there was only one issue for them to determine, and that was whether the defendants knew that the two Ford coupés were stolen on November 16, 1925, when they drove them to Madison, Ill., and that he thought other matters necessary to a verdict were out of the case, but that they might find that the Ford sedan was stolen, that it was found in defendants' possession by Dietz on December 7, 1925, that that fact raised the presumption that the defendants stole it, and that upon that presumption they might presume and find that the defendants knew, on November 16, 1925, twenty-one days before the Ford sedan was found, when they transported the two Ford coupés to Madison, that those two coupés had been stolen and then transported by them knowing them to be stolen. To this charge as to the Ford sedan counsel for the defendants strenuously objected and excepted.

A careful reading and analysis of all the evidence in this case and of the law applicable to it has forced our minds to the conclusion that there was error in the admission of the evidence and in the charge of the court as to the Ford sedan, (a) because there was no evidence sufficient to sustain a finding that the Ford sedan was ever in the defendants' possession or control; (b) because if, when found by Dietz on December 7, 1925, it had been in their possession, the inference from that possession that the defendants knew on November 16, 1925, that the two...