Stewart v. United States, 13045.

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: GARDNER, SANBORN, and THOMAS, Circuit
• Citation: Stewart v. United States, 151 F.2d 386 (8th Cir. 1945)
• Decision Date: 15 October 1945
• Docket Number: No. 13045.,13045.
• Parties: STEWART v. UNITED STATES.

151 F.2d 386 (1945)

STEWART v. UNITED STATES.

No. 13045.

Circuit Court of Appeals, Eighth Circuit.

October 15, 1945.

E. M. Ditmon, of Ft. Smith, Ark., for appellant.

Thomas C. Pitts, Asst. U. S. Atty., of Ft. Smith, Ark. (Clinton R. Barry, U. S. Atty., and Hugh M. Bland, Asst. U. S. Atty., both of Ft. Smith, Ark., on the brief), for appellee.

Before GARDNER, SANBORN, and THOMAS, Circuit Judges.

GARDNER, Circuit Judge.

This is an appeal from a judgment of conviction under an indictment charging appellant with the violation of Section 408, 18 U.S.C.A., known as the National Motor Vehicle Theft Act. So far as here pertinent the statute reads as follows: "Whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, or by imprisonment of not more than five years, or both."

The indictment charges that the defendant on or about the 17th day of June, 1944, in the City of Fort Smith, Arkansas, "did unlawfully, knowingly, wilfully and feloniously transport in interstate commerce from the City of Fort Smith in the State of Arkansas, to Moses Lake in the State of Washington, a certain motor vehicle; to-wit, one 1941 model DeLuxe Ford Coupe automobile, motor number XXXXXX-XXX, the personal property of one A. L. Gosnell, * * *, which said motor vehicle had been theretofore feloniously stolen, taken and driven away without the consent of the owner and with intent to deprive said owner thereof, the said defendant well knowing at the time of so transporting said motor vehicle in interstate commerce as aforesaid that the same had been stolen as aforesaid * * *."

On written stipulation waiving trial by jury defendant was tried by the court and adjudged guilty as charged in the indictment. The court having found the defendant guilty, the evidence must be construed in a light most favorable to the government. So construed, the facts are substantially as follows:

On June 17, 1944, one A. L. Gosnell, who owned and operated a filling station in the City of Fort Smith, Arkansas, was also the owner of the automobile described in the indictment. At that date and for some time prior thereto defendant was in the employ of Gosnell at his filling station as a filling station attendant. He lived in the City of Fort Smith, Arkansas. On the date mentioned defendant received a telegram from a woman known in the record as Betty Stewart, asking him to meet her in Memphis, Tennessee. On June 17, 1944, following the receipt of this telegram, defendant importuned his employer to loan him his automobile to go home that night after work and to return to work the next morning. Prior to said date defendant had used a Model A Ford belonging to Gosnell to drive back and forth from his home to the filling station, and when defendant asked to borrow the DeLuxe coupe Gosnell said to him, "Why don't you drive that Model A? You have been driving it." To this defendant replied that he didn't have any lights on it, and said, "I won't hurt it a bit." Gosnell then said, "I really don't want to let you have it Russell because I don't have a dime's worth of insurance on it an it would ruin me if you tore it up," to which defendant replied, "I won't tear it up. I'll be careful." Gosnell then said, "Well, will you be down to work in time to open up?," to which defendant replied, "Yes." Gosnell finally consented to let defendant use the car to drive home after work and back to work the next morning in time to open the filling station about 7 or 7:30 o'clock a.m.

Gosnell and an employee named Eugene Fuller left for Poteau, Oklahoma, the evening of the 17th of June, leaving defendant to close the filling station. When they returned to the place of business the morning of June 18, 1944, the filling station was closed and the car was gone. Defendant was not at his home and could not be found in the City of Fort Smith. He in fact drove the car to Memphis, Tennessee, where he was joined by Betty Stewart, then to Iuka, Mississippi, and Dennis, Mississippi, and then to California and to Moses Lake, Washington, where the car was recovered and defendant arrested. This was on September 6, 1944, and he was then in possession of the automobile. From the time he departed from Fort Smith, Arkansas, with the car on June 17, 1944, he did not communicate with Gosnell, the owner of the car. Defendant in his testimony admitted the transportation of the car in interstate commerce. The evidence warranted the inference or...