Schwab v. United States

• Decision Date: 24 January 1964
• Docket Number: No. 17362.,17362.
• Citation: 327 F.2d 11
• Parties: George C. SCHWAB, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

327 F.2d 11 (1964)

George C. SCHWAB, Appellant, v. UNITED STATES of America, Appellee.

No. 17362.

United States Court of Appeals Eighth Circuit.

January 24, 1964.

Torrey N. Foster, St. Louis, Mo., for appellant.

Patrick J. Foley, Asst. U. S. Atty., Minneapolis, Minn., Miles W. Lord, U. S. Atty., Minneapolis, Minn., for appellee.

Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.

BLACKMUN, Circuit Judge.

George C. Schwab, age 37, after a plea of not guilty, was convicted by a jury of a violation of the National Motor Vehicle Theft Act, 18 U.S.C. § 2312. The indictment charged him, in the statutory language, with having transported a truck in interstate commerce in September 1961 from Huron, South Dakota, to Virginia, Minnesota, "knowing the same to have been stolen". This court granted Schwab leave to prosecute his appeal in forma pauperis and ordered the transcript prepared at government expense. Schwab was represented at his trial by court appointed counsel. He is represented here by different counsel appointed by this court.

The defendant urges (a) the insufficiency of the evidence to support the conviction, (b) errors in the instructions, and (c) improper remarks as to the defendant's past criminal record.

There is not much dispute about the facts. On September 8, 1961, Schwab was employed with a carnival then at Huron, South Dakota. He temporarily occupied a boarding house room with an electric company lineman named Thomas Carter. Shortly after midnight on September 9 Schwab awakened Carter and asked to borrow his pickup truck. Carter granted this permission. Schwab took the keys and left with the truck. Carter testified that Schwab had told him he wanted to use the truck for one hour to move some merchandise and that he told Schwab he could use the truck if he would take care of it and get it back in an hour. Mary Ann Knudtson, who became 17 in October 1961, was also employed at the carnival. She knew the defendant as Johnny Deirk. She testified that she and Schwab had talked about leaving the carnival; that he told her that her boy friend was in the nearby village of Iroquois and that he would take her to him; that she waited for Schwab outside the boarding house early that morning; that he came out and said, "This is my truck" and "Let's go"; that they stopped a short while at a carnival party; that Schwab then drove the few miles east to Iroquois where they looked around but did not find her friend; that after about ten minutes they continued east because "he was going to take me back to my home town" in Wisconsin; that Schwab paid for the gas along the way; that they drove through the Twin Cities; that Schwab said "he was going up to Virginia to visit some friends or relatives"; that they stopped, however, in St. Paul where Schwab said "he had a brother there who was a priest or something" and went in to talk to him; that they eventually reached Virginia, Minnesota; that they stayed in the truck that night; that Schwab looked around and said his relative was not there; that they went on to Ely, Minnesota, but found no one and started back to Virginia; that they again spent the night in the truck; and that as they were going to get gas a highway patrolman asked them to step out and Schwab said, "Well, we got caught, Mary". The patrolman testified that he gave his name as Frank Theisen.

In Ely Schwab saw Father Mihelcik from whom he sought to borrow money and to whom he gave the name of Theisen. In that city he dismantled a radio from the truck and gave it to a service station attendant as security for gasoline. When Schwab and Mary Ann were taken to jail in Virginia he was questioned by the assistant chief of police. That officer testified that Schwab told him that he had had no intention of taking Mary Ann to her boy friend and that he would have taken Carter's keys if he had been "asleep or not home".

Schwab took the stand in his own defense. He testified that he was concerned about Miss Knudtson's working at the carnival; that she was unhappy in that job and wanted to leave; that he had consumed a large amount of alcohol beginning September 7 and did not have any sleep; that he had received a call from a companion of Mary Ann's friend in Iroquois; that he tried to obtain accommodations for her; that he had told Carter that he might use the truck "a little while longer"; that he took none of his own possessions with him when he left Huron and none of hers which he had had for three days; that he intended to leave Mary Ann with friends in Virginia; that when he was in Virginia he tried unsuccessfully to reach his Huron landlady by telephone; that he lost his wallet while fishing; that they did not try to conceal their whereabouts; that they used main highways; that when he was arrested he said the truck was borrowed and not stolen; and that he never attempted to dispose of the vehicle.

Appellate counsel for the defense observes that appropriate objections to the court's instructions and motions for judgment of acquittal or for a new trial may not have been made. The position is taken, however, that the errors now urged were plain and affected substantial rights, within the meaning of Rule 52(b), F.R.Cr.P. We look to the merits.

1. The statute's use of the word "stolen". The argument here is that this necessarily embraces an intent permanently to deprive the owner of his vehicle and that the court's instruction which referred to "the intent to deprive the owner of the rights and benefits of ownership" was correct only insofar as it went and was erroneous because it stopped short of the required element of permanency.

Whatever may have been the early and varying approaches to the word "stolen" by the lower federal courts,¹ the matter was largely set at rest by the divided decision in United States v. Turley, 352 U.S. 407, 417, 77 S.Ct. 397, 402, 1 L.Ed. 2d 430 (1957), where the Court said:

"`Stolen\' as used in 18 U.S.C. § 2312 includes all felonious takings of motor vehicles with intent to deprive the owner of the rights and benefits of ownership, regardless of whether or not the theft constitutes commonlaw larceny."

This court, of course, has recognized the efficacy of that holding and has followed it. Brown v. United States, 277 F.2d 201, 203 (8 Cir. 1960); Dixon v. United States, 295 F.2d 396, 399 (8 Cir. 1961); Landwehr v. United States, 304 F.2d 217, 220 (8 Cir. 1962). The defense asserts, however, that, although the quotation from Turley does not contain the word "permanently", this nevertheless is an essential aspect of the required intent and must be covered by the court's instructions. It refers to Turley's own illustrations, p. 416 of 352 U.S., p. 402, of 77 S.Ct., 1 L.Ed.2d 430 of automobiles purchased with a worthless check or rented "and sold" and it cites Boone v. United States, 235 F.2d 939, 940 (4 Cir. 1956) otherwise noted with approval in Turley, 352 U.S. pp. 411-412, 77 S.Ct. pp. 399-400, 1 L.Ed.2d 430, where the Fourth Circuit, after construing § 2312 to cover the taking of a vehicle "for one's own use without right", added the comment "contemplating, of course, an intent to deprive the owner of it permanently".

We are not so persuaded. The decision in Turley has been uniformly recognized as a broad, not a narrow, approach to the statute. Its language which we have quoted does not say "all" the rights and benefits of ownership and it does not say that there must be an intent to deprive the owner of those rights for all time. The breadth of the Turley precedent demands a conclusion that the statute may be satisfied with something less than permanency and something less than a deprival of the totality of ownership.

Secondly, Boone concerned an automobile obtained, not through larceny, but by false pretenses, namely, purchasing it with a worthless check. It was in this connection and atmosphere that the "permanently" clause was employed by the Fourth Circuit. We cannot know, of course, just why it was used. We think it was to emphasize the court's broad approach to the statute (the decision came down, after all, prior to the guidelines established by Turley) and to stress that something less than the intent of common law larceny was within the reach of the statute. We cannot believe that the Fourth Circuit, by its use of this phrase, appended to a quotation from other opinions, found in no prior decision, and essentially dictum, meant to restrict and circumscribe the statute. But if such a meaning was there, purposefully or by accident, we deem its force fully negated by the Turley decision.

Thirdly, although Boone has since been cited by the Fourth Circuit, Scott v. United States, 255 F.2d 18, 20 (4 Cir. 1958), cert. denied 357 U.S. 942, 78 S.Ct. 1392, 2 L.Ed.2d 1555; Miller v. United States, 261 F.2d 546, 547 (4 Cir. 1958); and United States v. Oates, 314 F.2d 593, 594 (4 Cir. 1963), and by the Fifth Circuit, Lyda v. United States, 279 F.2d 461, 464 (5 Cir. 1960), the "permanently" clause has not been quoted or approved in any of these opinions.

Finally, this very point, when it has been raised, has been decided adversely to the defense. In Berard v. United States, 309 F.2d 260, 261 (9 Cir. 1962), the court said, with respect to the permanency argument, "it would not suit the purposes of the Dyer Act to limit its application in the manner contended for by appellant". Judge Chesnut, in United States v. Sheffield, 161 F.Supp. 387, 389-391 (D.Md., 1958), and then Judge Jameson, in United States v. Brickles, 177 F. Supp. 944, 946-948 (D.Mont., 1959), dealt specifically with the phrase as it appeared in Boone. Although these two district court cases each concerned a situation where the defendant came into possession of the car without any authority whatsoever, the import of the opinions is clear. Judge Chesnut said, p. 390 of 161 F.Supp.:

"There can be no doubt that the original taking by the defendant in this case deprived the owner of important property rights

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