Before MAJOR, Chief Judge, and KERNER and MINTON, Circuit Judges.
Appellant Lewis Marvin Gardner (hereinafter referred to as the defendant or Gardner) was tried by a jury on three separate indictments which by agreement were consolidated for trial. He was found guilty on each of said indictments upon which the judgments appealed from were entered.
In appeal No. 9637, it was charged that the defendant "caused to be transported a stolen motor vehicle, [describing the same] from Indianapolis, in the Indianapolis Division of the Southern District of Indiana, to Nashville, State of Tennessee, and he then knew the said motor vehicle to have been stolen." This indictment was predicated upon the National Motor Vehicle Theft Act, 18 U.S.C.A. § 408 [now §§ 2311-2313]. In appeal No. 9638, it was charged that the defendant, together with Raymond F. Ivory and Richard M. Shelton "caused certain forged and counterfeited cashier's checks [describing the same] to be transported from Richmond, in the Indianapolis Division of the Southern District of Indiana, to Chicago, State of Illinois, in interstate commerce, by transferring said forged and counterfeited checks to H. W. Chenoweth in exchange for automobiles, with the fraudulent intent to obtain title to said automobiles, knowing that said forged and counterfeited checks had been falsely made, forged, and counterfeited." This indictment was predicated upon the National Stolen Property Act, 18 U.S.C.A. § 415 [now § 2314]. In appeal No.9639, the defendant and the same co-defendants named in No. 9638, were charged with conspiring "to violate the National Stolen Property Act and the National Motor Vehicle Theft Act" in that they "did conspire to transport or cause to be transported in interstate commerce, falsely made, forged, and counterfeited checks, knowing the same to have been falsely made, forged, and counterfeited, and to obtain by a transfer of such checks a number of motor vehicles, which motor vehicles were to be transported in interstate commerce." The record does not disclose the disposition made of the cases against the co-defendants named in Nos. 9638 and 9639. It is sufficient to keep in mind that they were not tried with the instant defendant and we are not now concerned with the charges against them.
The judgments appealed from are attacked upon numerous grounds, the most important perhaps being that the proof was not sufficient to justify a submission of the charges to the jury. This question was properly preserved for review by a motion for a directed verdict as to each of the charges at the close of the government's evidence and again at the close of all the evidence. The court in each of the cases reserved its decision on the motions for acquittal, which were overruled subsequent to the jury verdicts.
As to No. 9637, it is argued that the proof does not show the transportation alleged was a stolen motor vehicle as that term is used in the National Motor Vehicle Theft Act, and that in any event there is no proof that the defendant had knowledge that it was stolen. As to No. 9638, it is argued that there is no proof that the defendant had any connection with the forged checks mentioned in the indictment, either in their execution or in their passing to Chenoweth, and in any event there is no proof that the defendant transported or caused to be transported such checks in interstate commerce. As to No. 9639, it is argued there is a complete failure of proof that the defendant entered into the conspiracy charged with knowledge that crimes were to be committed, as alleged in Nos. 9637 and 9638. It is further argued that the conspiracy indictment is defective because of a failure to allege that the conspiracy, insofar as it relates to motor vehicles, was entered into with knowledge that such vehicles were stolen or to be stolen.
The proof offered by the government to sustain the three convictions is in its essential aspects the same. The alleged stolen motor vehicle which the defendant is charged in No. 9637 with having transported in interstate commerce was obtained on October 7, 1947 from H. W. Chenoweth, an automobile dealer of Richmond, Indiana, and the forged checks and vouchers which the defendant is charged in No. 9638 with having caused to be transported in interstate commerce were given to Chenoweth in payment for said motor vehicle, and the proof as to these two substantive charges is relied upon to show the conspiracy charged in No. 9639. No authority need be cited for the proposition that knowledge is the scienter of the offense as alleged in each of the substantive charges, and we think that is likewise true of the conspiracy charge wherein the conspiracy alleged was to violate provisions of the statute which require the proof of such scienter. In other words, there could be no unlawful conspiracy to transport a stolen motor vehicle without knowledge that it was stolen and no unlawful conspiracy to cause to be transported a forged check without knowledge that it was forged.
Inasmuch as we have reached the conclusion that these judgments must be reversed for a failure of proof, it appears proper to relate in some detail the testimony upon which the government relies. In our view, the turning point in these cases is largely dependent upon what, if any, connection or knowledge the defendant had as to the manner and means employed by Shelton and Ivory in obtaining the Buick car from Chenoweth. We shall, therefore, first consider the proof of defendant's activities prior to that event and, later, the proof subsequent thereto.
Defendant was engaged in the operation of a restaurant in Indianapolis, Indiana, and also was a dealer in second-hand cars. For the latter activity he had no place of business but was known as a curb dealer. On October 7, 1947, Shelton and Ivory visited the defendant's restaurant. Defendant was acquainted with Ivory but that was the first time he had met Shelton. Prior to going to defendant's restaurant, Shelton and Ivory had prepared and signed the forged checks which were later given to Chenoweth in payment for a Buick car. Defendant in his own car drove Shelton and Ivory to Richmond, Indiana, where Ivory intended to buy a car. Defendant parked his car a block or two from Chenoweth's place of business and, according to the testimony of Shelton, went downtown. Shelton and Ivory proceeded to the Chenoweth agency, first met a salesman and then later Chenoweth himself. They introduced themselves as Deming and Shelton and stated that they were from Joplin, Missouri. They succeeded in purchasing from Chenoweth a 1947 Buick Roadmaster Sedan and paid for the same by two forged and spurious checks. In connection with the sale, Chenoweth caused to be prepared a certificate showing the transfer of title to the purchasers. The Buick car was then delivered by Chenoweth to Shelton and Ivory.
The defendant was not called as a witness. All the testimony, if such there be, which connects or tends to connect the defendant with the procurement of the car in question is that of Chenoweth. He testified that the two men with whom he dealt represented themselves as Deming and Shelton, that they were from Joplin, Missouri, and that when he got back from dinner, around 7 o'clock, these two men were trying to buy a car from his salesman, Owen Vick. We set forth in a footnote the sole testimony which the government relies upon as proof that the defendant was a party to or connected with this transaction.*fn1 It at once is obvious that this so-called identification of the defendant is so vague and uncertain as to have no probative value. The witness also testified that the checks in payment for the car were handed to him by Shelton and Deming, and all through his testimony he refers to the parties who represented themselves as Shelton and Deming without any further effort to identify the defendant.
Vick, the salesman who apparently spent more time with the purchasers of the car than Chenoweth, testified to certain conversations with two men, and when asked, "Do you recognize the Defendant as being one of the persons, the Defendant Gardner, here, as being one of the persons that was in the place of business?" answered, "I don't recognize this fellow personally." Asked by the court, presumably referring to the defendant Gardner, "You don't remember seeing this gentleman at my immediate right at any time that night?" Vick answered, "I can't recall his face." Shelton, who was called as a witness by the government, testified that Gardner was not present at the time the car was purchased, and in response to a question stated, "Well, to my knowledge, as far as the checks were concerned, as far as these checks that you just gave me, Mr. Gardner, as far as I know, did not know anything about the checks."
Notwithstanding this dearth of proof, the government argues that it can be inferred that Gardner was present and had knowledge of the means employed to obtain the Buick car from Chenoweth. Other than the fact that the defendant drove Ivory and Shelton to Richmond in his car and the abortive identification testimony of Chenoweth, there is absolutely nothing to connect the defendant with the transaction. The positive testimony is that he was at some other place and that he had no knowledge that forged or spurious checks were to be given Chenoweth. An inference of criminality must rest on something more substantial than the imagination of a prosecuting attorney or a trier of the facts.
This appears an appropriate point to consider the proof relative to No. 9638, in which it is charged that the defendant caused the forged checks to be transported in interstate commerce with knowledge that they were forged. After the forged checks (they may better be designated as spurious or non-genuine checks) were delivered to him in the manner heretofore related, Chenoweth, according to his own testimony, called a party in Joplin, Missouri, who informed him "that there wasn't any such people in the town, and he knew that we had been hooked." Chenoweth then immediately took the checks to the police department who telephoned the president of the bank in Joplin on which they purported to be drawn, from whom was received the definite information that the checks were forged or spurious. Thus Chenoweth learned on October 7, 1947, the date on which the checks were received, that they were forgeries. The Buick car which he had sold Shelton and Ivory and for which the checks were accepted in payment was later recovered in Nashville, Tennessee, on October 10, and returned to Chenoweth on October 12.
There is some dispute as to the date on which Chenoweth presented the checks to the Richmond bank, but they were marked "Paid" by the bank on October 14, and it may be safely assumed, we think, that that was the date of their presentation. They were sent by the Richmond bank to the Chicago bank and reached the latter on October 17. Chenoweth deposited the checks in ...