United States v. Kolsky, 28230.
| Decision Date | 02 April 1970 |
| Docket Number | No. 28230.,28230. |
| Citation | 423 F.2d 1111 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Benjamin B. KOLSKY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kelly McKoin, Cecil Johnson, McKoin, Zinner, Hawkins & Johnson, Biloxi, Miss., for defendant-appellant.
Robert E. Hauberg, U.S. Atty., Joseph E. Brown, Jr., Daniel E. Lynn, Asst. U.S. Attys., Jackson, Miss., for plaintiff-appellee.
Before JOHN R. BROWN, Chief Judge, and AINSWORTH and GODBOLD, Circuit Judges.
Benjamin B. Kolsky, appellant, was convicted by a jury of a Dyer Act violation, 18 U.S.C. § 2312, for transporting a stolen motor vehicle from Mobile, Alabama, to Biloxi, Mississippi. He complains of error by the trial court in refusing to direct a judgment of acquittal, alleging that the verdict, based on circumstantial evidence, was against the overwhelming weight of the evidence and the law, and of certain instructions to the jury.
On September 24, 1968, appellant was arrested for reckless driving and investigation of motor theft in Biloxi, Mississippi, while in possession of a 1966 Pontiac, identification number VIN 6 P 321636, after having made two unsuccessful attempts to sell it. The vehicle had been reported missing from a car lot in St. Petersburg, Florida, on July 1, 1968. Appellant's extraordinary explanation of his possession of the vehicle was that one Bobby Baker, an alleged former employee and friend, owned the vehicle; that Baker, who was indebted to him, heard of appellant's financial plight and immediate need for additional money to pay certain fines growing out of a former burglary conviction in Georgia, telephoned him in St. Petersburg, Florida and offered to allow appellant to use and, if necessary, sell the vehicle. Baker's whereabouts were unknown. Appellant said his purpose in traveling to Mississippi was to secure the necessary money from two other friends who had also gratuitously telephoned him, both offering financial assistance and one offering to meet him at the Pensacola, Florida airport and to drive him to Biloxi, Mississippi, where he would pick up Baker's car. Following the instructions of Baker, appellant testified that he picked up the car at Baker's former place of employment, secured a bill of sale signed by Baker but with a blank space left for a potential buyer's name, from the glove compartment, and then attempted to sell the vehicle.
Appellant contends that the Government failed to prove the three elements necessary for conviction: that the car was stolen, that he had knowledge thereof, and that he transported it in interstate commerce. See Moody v. United States, 5 Cir., 1967, 377 F.2d 175. He contended that he drove the car within the confines of the State of Mississippi.
The record shows that there was sufficient evidence to support the conviction and to cause the jury to reject appellant's explanation of his alleged innocent possession of the vehicle. The Government produced evidence that the vehicle, identified by description and true concealed identification number, was stolen from the Adcock Buick Company, St. Petersburg, Florida, on June 30, 1968, and was later found in Biloxi, Mississippi, in possession of appellant who was using the assumed name of Robert Baker. There was evidence that the doorpost identification number, which did not agree with the true number, had been altered or substituted. In contrast to appellant's trial testimony of Mississippi intrastate transportation only, one of the prospective buyers testified that appellant had told him he had driven the car from Tampa, Florida, to Biloxi, Mississippi. An FBI agent and a Biloxi detective testified that appellant said he drove the car from Mobile, Alabama, to Biloxi, Mississippi.
The substantiality of evidence test, taking the view most favorable to the Government to support the verdict, has been adequately met. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); U.S.A. v. Cecil Summerour, 5 Cir., 1969, 411 F.2d 469. Guilty knowledge may be...
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Geesa v. State, 290-90
...issue of appellate review, these cases are persuasive on the issue of jury instructions. [citations omitted]. Compare United States v. Kolsky, 423 F.2d 1111 (5th Cir.1970) (no jury instruction but standard on appeal varies in circumstantial evidence cases [i.e., reasonable hypothesis] )."8 ......
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Hankins v. State
...210 Neb. 20, 312 N.W.2d 684 (1981); Pennsylvania, Com. v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977). Compare United States v. Kolsky, 423 F.2d 1111 (5th Cir.1970) (no jury instruction but standard on appeal varies in circumstantial evidence cases.)1 See majority opinion, p 7.2 See 36 Words......
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...75 S.Ct. 127, 99 L.Ed. 150 (1954). See United States v. Squella-Avendano, 478 F.2d 433, 436--37 (5th Cir. 1973); United States v. Kolsky, 423 F.2d 1111, 1113 (5th Cir. 1970).15 As noted earlier, a lien on the Johnson property was not filed until June of 1973.16 The affidavit contained no wa......
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State v. Turnipseed, 50229.
...439 U.S. 868, 99 S.Ct. 196, 58 L.Ed.2d 179 (1978); United States v. Hansbrough, 450 F.2d 328-29, (5th Cir. 1971). In United States v. Kolsky, 423 F.2d 1111 (5th Cir. 1970), the court of appeals stated: "Although the `reasonable hypothesis' test similar to the phrase at issue in the instant ......