Before WILBUR K. MILLER, BURGER and WRIGHT, Circuit Judges.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT. 1964.CDC.71
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER
WILBUR K. MILLER, Circuit Judge.
On February 4, 1963, a grand jury indicted the appellant, Theodore O. Travers, in two counts. The first charged him with the unauthorized use in the District of Columbia of a 1957 Ford automobile belonging to Joseph Spell "commencing on or about September 16, 1962 and continuing to on or about November 16, 1962," a violation of § 22-2204, D.C.CODE (1961), which is as follows:
"Any person who, without the consent of the owner, shall take, use, operate, or remove, or cause to be taken, used, operated, or removed from a garage, stable, or other building, or from any place or locality on a public or private highway, park, parkway, street, lot, field, enclosure, or space, an automobile or motor vehicle, and operate or drive or cause the same to be operated or driven for his own profit, use, or purpose shall be punished by a fine not exceeding one thousand dollars or imprisonment not exceeding five years, or both such fine and imprisonment."
The second count accused him of transporting the Spell car from the District of Columbia to Maryland on or about November 16, 1962, well knowing it had theretofore been stolen, a violation of 18 U.S.C. § 2312 (1958), which reads:
"Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both."
Thus, the indictment not only accused Travers of the non-federal offense of stealing the Spell car in the District of Columbia, but also of the federal offense of knowingly transporting a stolen car from the District into Maryland. The significance of these two elements will appear later in this opinion.
We summarize the evidence introduced at the trial in March, 1963. Some time in September, 1962, appellant purchased a junked 1957 Ford automobile from a salvage yard in Virginia. In the same month he bought another junked 1957 Ford automobile from a salvage yard in Maryland. On September 5, 1962, he submitted the title of his Maryland car to the District of Columbia Division of Motor Vehicles and obtained a District of Columbia title registration and tags.
On the morning of September 16, 1962, Joseph Spell discovered that his 1957 Ford automobile, which had been parked overnight on a District of Columbia street, had been stolen. No trace of it was discovered until November 16, 1962, when a police officer found appellant in Maryland behind the wheel of a 1957 Ford automobile which had collided with a tree. His head was slumped forward and he was bleeding from a gunshot wound in his back. The car bore the District of Columbia license tags which had been issued to appellant for his Maryland junk purchase, and the public serial number of his Virginia junk purchase, but the confidential serial number was that of the car that was stolen from Joseph Spell *fn1
There was no testimony that Travers stole the car from its parking place on or about September 16, 1962, and used it in the District of Columbia during the ensuing two months, nor did any witness testify that Travers transported it from the District into Maryland on or about November 16. Hence there was no direct evidence of Travers's guilt under either count.
A defense witness, Leon Ransome, gave an explanation of the unconscious appellant's presence in the stolen car. He testified that on November 16, 1962, he met Travers at a beer tavern in Maryland. According to Ransome, Chester Williams, a friend of appellant, drove up in a 1957 Ford automobile and, at Travers's request, agreed to take them to Ransome's house; Williams was driving, Travers was in the middle of the front seat, and Ransome was on his right *fn2 Ransome also testified that as they proceeded, they chanced upon two girls and started "fooling" with them. The girls ran into a house and immediately came out with a man carrying a gun who fired through the rear window of the automobile, striking appellant in the back. After the shot, Williams and Ransome abandoned the car, leaving the wounded Travers to fend for himself. A preacher and his son testified that Travers was at their home in Virginia, 145 miles from the District of Columbia, on September 16, 1962, when the Spell car was stolen.
Detective Smith, of the Metropolitan Police Department, interviewed Travers at the District of Columbia General Hospital on December 1, 1962. He testified that Travers told him he had purchased the stolen car in Virginia from one Chester Williams; that as Williams could not give him a title, he made his Maryland junk purchase so as to obtain a District of Columbia title for the car bought from Williams. It appears, however, that Travers submitted the ...