Before DUFFY, Chief Judge, and SCHNACKENBERG and HASTINGS, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Samuel A. Carmel, defendant, appeals from a judgment of conviction based upon a jury's verdict finding him guilty, as charged in an indictment, counts I and II of which alleged that he and codefendant Newton Elmo Renfro transported two automobiles from St. Louis, Missouri to Chicago, Illinois, knowing the same to have been stolen, and count III of which alleged a conspiracy between the same parties to commit the aforesaid offenses.
Renfro pleaded guity to each count and testified for the government on the trial of defendant.
It is defendant's contention that there is no evidence in the record which proves his guilt beyond a reasonable doubt. More specifically, defendant states that the government had the burden of proving that defendant had knowledge that the automobiles described in the indictment had been stolen. The government concedes that there is no direct evidence in the record of defendant's guilty knowledge but avers that knowledge may be established by circumstantial evidence.
We have carefully examined the record. There is evidence tending to prove, inter alia, that on August 6, 1958, Renfro asked Carmel, in St. Louis, if he knew where Renfro could sell a couple of cars in Chicago and that Carmel later gave Renfro the name of a Mr. Wormser, manager of Friendly Motors on Cicero avenue, in Chicago, and told Renfro that he wanted to get $400 out of the deal, to cover a debt which Renfro owed to him. Renfro agreed to that request. Renfro told Carmel that he was going to sell the cars in the name of Elmer Johnson who, Renfro said he told Carmel, was a dealer. Carmel telephoned Wormser and told him that a friend had two automobiles in St. Louis and this friend owed him some money, that the used car market there was very low, and asked Wormser if he could sell the cars for him in Chicago. Wormser agreed to see what he could do. The next day Carmel phoned Wormser and said that Elmer Johnson would bring the cars in, that he owed Carmel some money and that if Wormser sold the cars, Wormser was to send him a check for $400.
Renfro came with the cars to Wormser in Chicago, representing himself to be Elmer Johnson. Renfro sold them to Wormser for $2,600 and, after getting Carmel's consent on the telephone, Wormser postdated a check which he gave to Renfro so as to gain time to check the titles to the cars, and agreed to mail to Carmel his check for $400.
Wormser contacted the Chicago police, who discovered that the cars had been stolen, and Wormser telephoned Carmel and told him so.
When Carmel was arrested in St. Louis, he insisted that a wreck rebuilder in St. Louis county, known to him as Elmer Johnson, owed him $400 from past dealings and that Elmer Johnson told him that he had two cars he wished to sell and had asked Carmel's assistance in selling them: that to help Johnson sell these cars he had telephoned to an old acquaintance, Wormser, in Chicago, where market conditions for cars were good.
Whether the evidence, as above briefly summarized,*fn1 established knowledge on the part of Carmel that the cars were stolen or a mere suspicion thereof, or neither knowledge nor suspicion, presents a serious question. We are convinced that all of the evidence in the record presented a close case to the jury for decision. Therefore Carmel's contention that prejudicial error in the course of the trial substantially affected the fairness thereof requires our consideration. Our attention is called to repeated questioning of witnesses and comments by the court, some of which we now cite.*fn2
Renfro, a government witness, testified that he received from Wormser's firm, two checks payable to Elmer Johnson. The following proceedings then took place:
"The Court: Who is Elmer Johnson?
"The Witness: No one in particular, sir.
"The Court: Why did you write his name on the check?
"The Witness: I know a dealer by the name of Johnson in St. Louis.
"The Court: You were using his name, is that it?
"The Court: Did he have any interest in these cars, this Johnson?
"The Witness: No, sir, he did not."
When Renfro was cross-examined by defendant's attorney as to whether either Renfro and his partner, or the Donaldson Garage, owed about $600, the following proceedings occurred:
"The Court: Whom did you owe the money to?
"The Witness: Delta Underwriters.
"The Court: You didn't owe it to Mr. Carmel, did you?
"The Witness: Not to him personally.
"The Court: Not personally?
"The Court: You owed it to your employer, isn't that right?
"The Witness: Right. It was to the company."
When Carmel testified to a conversation with Dempsey, an FBI agent, and referred to Renfro as Mr. Johnson, the court inquired:
"Why did you describe Mr. Renfro when he asked you ...