United States v. One 1941 Chrysler Brougham Sedan

• Decision Date: 15 December 1947
• Docket Number: No. 6583.,6583.
• Parties: UNITED STATES v. ONE 1941 CHRYSLER BROUGHAM SEDAN.
• Court: U.S. District Court — Western District of Michigan

74 F. Supp. 970

UNITED STATES v. ONE 1941 CHRYSLER BROUGHAM SEDAN.

No. 6583.

District Court, E. D. Michigan, S. D.

December 15, 1947.

Thomas P. Thornton, U. S. Atty., and Vincent Fordell, Asst. U. S. Atty., both of Detroit, Mich., for plaintiff.

Leo H. Robb and Robb & Robb, all of Detroit, Mich., for claimant.

LEVIN, District Judge.

In this libel by the United States of America for the forfeiture of an automobile under Sections 781 and 782 of Title 49 U.S.C.A., the claimant, Harry Tennyson, Jr., doing business as the Auto-Truck Rental Company, does not challenge the Government's proof that the automobile seized was used by one Henry Schultz to possess and conceal contraband narcotics with the intent to sell them in violation of the Federal narcotic laws and regulations, or that there was probable cause to institute the forfeiture proceeding. Further, the claimant acknowledged upon the conclusion of the trial that this is a proceeding in rem against the car to which the law ascribes a power of complicity and guilt in the offense, and that the forfeiture is considered as directed against the thing itself and not merely the possessor's interest in it. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376; United States v. One Ford Coupé, Automobile, 272 U.S. 321, 47 S.Ct. 154, 71 L.Ed. 279, 47 A.L.R. 1025; United States v. Pacific Finance Corporation, 2 Cir., 110 F.2d 732; United States v. One 1946 Plymouth Sedan, D.C., 73 F.Supp. 88.

Claimant submits that no forfeiture should be ordered because of the exemption¹ appearing in Section 782, supra, in that the automobile when seized was unlawfully in the possession of Schultz who acquired possession thereof in violation of the Penal Code of the State of Michigan, viz., Sections 356,² 413,³ and 414⁴ of Act 328, Public Acts of Michigan 1931, Comp.Laws Supp.Mich.1935, secs. XXXXX-XXX, XXXXX-XXX, XXXXX-XXX, Mich.Stat.Ann. Secs. 28.588, 28.645, 28.646, relating respectively to larceny, to taking possession of and driving away a motor vehicle and to taking or using a motor vehicle without authority but without intent to steal.

In considering the larceny statute, Section 356, supra, attention is directed to the language of the statute, "larceny, by stealing". Was the automobile in question stolen from the claimant? Schultz had rented the vehicle from the claimant upon the representation that he was a dealer in surplus war materials and that the automobile was required in his business. He gave the names of three individuals as references and signed a printed form agreement which provided in part as follows: "Renter agrees not to use said vehicle * * * in violation of any Federal, State or Municipal Law, ordinance, rule or regulation governing the use or return thereof * * * Renter further expressly agrees to indemnify the Insurance Company for any and all loss, damage, cost and expense paid or incurred by the Insurance Company * * * because of injuries or damages resulting from the operation of said vehicle in violation of any of the following terms or conditions; * * * in violation of any of the terms of the rental agreement; * * * outside of the scope of the driver's employment in the usual course of the trade, business, profession or occupation of the renter; * * * and or any illegal purpose."

This was a simple bailment for hire and gave the bailee the sole custody and control of the automobile during the term of the rental. His possession was a lawful one and he was entitled to hold it against third persons. Justice Holmes in his treatise on the Common Law, pp. 175, 239, said, "All bailees from time immemorial have been regarded by the English law as possessors, and entitled to the possessory remedies." "The facts constituting possession generate rights as truly as do the facts which constitute ownership, although the rights of a mere possessor are less extensive than those of an owner." The claimant herein contends, however, that since the automobile was obtained from him by false and fraudulent pretenses, a larceny may be spelled out. The distinction between the crime of larceny and obtaining property by false pretenses in many cases may be very narrow, but the rule is well defined, nevertheless. The distinction has been stated to be as follows:

"In larceny the owner of the thing stolen has no intention to part with his property therein; in false pretenses the owner does intend to part with his property in the thing but this intention is the result of fraudulent contrivances." Zink v. People, 77 N.Y. 114, 121, 33 Am.Rep. 589, cited with approval in People v. Martin, 116 Mich. 446, 74 N.W. 653. Under the common law it is clear that there can be no larceny without a trespass and that it is necessary to show a taking against the consent of the owner. Schultz having had possession of the automobile under a claim of right, cannot be deemed guilty of larceny since felonious intent to deprive the owner permanently of his property is an essential element of the crime of larceny. Such intent has not been proved. The cited larceny statute is therefore inapplicable. People v. Shaunding, 268 Mich. 218, 219, 255 N.W. 770. In United States Fidelity & Guaranty Co. et al. v. Peoples Bank & Trust Co. of Westfield, 3 Cir., 79 F.2d 642, 644, involving the interpretation of a New Jersey larceny statute, the Court said: "Larceny implies theft and not fraud. At common law, larceny was defined as the felonious taking of the property of another with the intent to convert it to the use of the taker. 2 Leach 1089; 4 Bla.Com. 229. * * * Thus, to constitute larceny, there must be a taking against the consent of the owner; and the taking will not be larceny if consent be given although obtained by fraud. Lewer v. Commonwealth, 15 Serg. & R. (Pa.) 93; 2 Bishop on Criminal Law (9th Ed.) § 808; 36 C.J. 777, § 139; 2 Wharton on Criminal Law (11th Ed.) § 1152, p. 1374."

Section 413 has no application because Schultz obtained possession of the automobile with the consent of the owner. He did not come into possession without authority, even assuming such authority was obtained by misrepresentation as to the intended use of the automobile....