United States v. Jacobs, 72-1258.
| Decision Date | 12 February 1973 |
| Docket Number | No. 72-1258.,72-1258. |
| Citation | 473 F.2d 461 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Russell Eugene JACOBS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Edward H. Funston, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., and Glen S. Kelly, Asst. U. S. Atty., on the brief), for plaintiff-appellee.
James W. Creamer, Jr., Denver, Colo. (Flowers & Creamer, Denver, Colo., on the brief), for defendant-appellant.
Before PHILLIPS, BARRETT and DOYLE, Circuit Judges.
An indictment was returned in the United States District Court for the District of Kansas against Jacobs, charging that he wilfully, unlawfully and feloniously transported and caused to be transported in interstate commerce a stolen motor vehicle, to wit, a 1960 Austin Healey, from the State of Missouri to the State of Kansas, knowing said motor vehicle to have been stolen, in violation of 18 U.S.C. § 2312.
He entered a plea of not guilty and also a plea of not guilty by reason of insanity. He was tried, convicted, and sentenced, and has appealed.
The testimony of the Government clearly established these facts:
On April 15, 1972, Michael Bonderer and Jacobs went together to two different taverns in Kansas City, Missouri, where each of them drank intoxicating liquor. They traveled from the first to the second tavern in a 1960 Austin Healey owned by Bonderer. While they were at the second tavern, Jacobs left at two different times. After Jacobs left the second time, Bonderer discovered that his automobile was not at the parking lot where they left it. Bonderer waited two hours after discovering that his car was gone before reporting that fact to the police, because he thought Jacobs had taken it and he knew Jacobs had been drinking and did not want to get him into trouble.
Bonderer had lost the keys to his automobile and had "hot wired" it so he could activate the ignition. Bonderer learned from various sources that Jacobs had taken his automobile from the parking lot.
Early on April 16, 1971, Bonderer learned that his automobile had been involved in a highway accident, and was stored at a service station in Leavenworth, Kansas.
John T. Stevenson was a relative of Jacobs, but prior to April 15, 1971, had not seen him for several years. On that date, Jacobs came to Stevenson's home in Kansas City, Missouri. When he arrived, he was driving an Austin Healey and told Stevenson he had bought it from a friend. Jacobs remained at the Stevenson home for several hours, and late in the afternoon of April 15, 1971, left with one Gary A. McKinney, whom he had met at Stevenson's home. Jacobs and McKinney left in what McKinney described as a "sports car," which Jacobs was driving. They purchased one or two six-packs of beer and drove aimlessly around Kansas City, Missouri, while consuming the beer. They then proceeded to McKinney's home, where they stopped for a short time, and then left in the automobile, which Jacobs had been driving, to go to Colorado. They entered the Kansas Turnpike about 10 p. m. They were driving at a high rate of speed and became involved in a highway accident in Kansas. When that happened, Jacobs told McKinney to run, because the car was "hot." In certain channels, "hot" is a term meaning "stolen." Before the accident, Jacobs had told McKinney that he had borrowed the car from a friend.
The Kansas State Patrolman who went to the scene of the accident on April 15, 1971, was able to identify Bonderer's Austin Healey automobile as one of the cars involved in the accident, from numbers and information he had theretofore received.
Jacobs testified that early in the morning of April 15, 1971, he went to a tavern and began drinking; that sometime thereafter he met Bonderer at the tavern and they had "several drinks" and then drove in Bonderer's Austin Healey to another tavern; that he noticed Bonderer did not use a key to start the automobile, but touched two wires together to activate the ignition; that after several drinks at the second tavern he requested and received permission from Bonderer to use the Austin Healey to run an errand; that he returned to the tavern and thereafter received permission from Bonderer to use the Austin Healey a second time; that he then proceeded to the Stevenson home, where he met McKinney; that after drinking at the Stevenson home he and McKinney left in the Austin Healey, picked up two six-packs of beer, and proceeded to McKinney's home; that he then intended to return the Austin Healey to Bonderer, but he had consumed so much beer that he was not certain of his actions; that after leaving the McKinney home, McKinney said, "You better let me drive"; that he remembered that they stopped for gas shortly after McKinney began driving, which was about 7:30 p. m., April 15, 1971; that he did not remember driving, the car after leaving McKinney's home, nor did he remember crossing the state line into Kansas; that he next thing he did remember was waking up in a barn somewhere in Kansas in the vicinity of the Kansas Turnpike; that he returned to Kansas City, Missouri, and was informed that the police were looking for him; that because he had a previous record he left Kansas City; that he spent several months traveling in the South Central region of the United States, where he stayed with various friends; that he finally went to Miami, Florida, and was arrested on a traffic violation on August 6, 1971; that he had periods when he had a complete lapse of memory, and that those lapses usually occurred after he had been drinking.
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