Before HASTINGS, Chief Judge, and KNOCH and KILEY, Circuit Judges.
Defendant, Frederick Lee Koeller, was charged in a one count indictment with a violation of the Dyer Act, Title 18, U.S.C.A. § 2312.*fn1 Following a trial by jury, he was found guilty as charged in the indictment. He was committed to the custody of the Attorney General for imprisonment for a period of two years. He now appeals from such judgment of conviction.
"That on or about the 22nd day of February, 1961 FREDERICK LEE KOELLER did unlawfully, knowingly and wilfully transport in interstate commerce from the City of Las Vegas, Nevada to Milwaukee, in the State and Eastern District of Wisconsin within the confines and jurisdiction of this Court, a certain stolen motor vehicle, to-wit: A 1960 White Chevrolet Impalla Convertible, Identification No. VIN 01867C108048; he, the said Frederick Lee Koeller, then and there knowing the said motor vehicle to have been stolen; in violation of Section 2312, Title 18, United States Code of Laws. * *"
The errors relied on for reversal arise out of the refusal of the trial court to grant defendant's motion to dismiss the indictment on the grounds that the Government did not prove a prima facie case; that the evidence as shown by the record was not such as to warrant the jury to find defendant guilty; and certain rulings on evidence.
The first two of such errors relate to whether there is substantial evidence to support the verdict of the jury and will be treated together.
It is well settled that in determining this question on appeal we must consider the evidence in the light most favorable to the Government and in the light of all inferences which the jury might reasonably draw from the evidence, resolving any conflicts in the evidence in favor of the Government. United States v. Marshall, 7 Cir., 266 F.2d 92, 94 (1959); United States v. Achilli, 7 Cir., 234 F.2d 797, 803 (1956), aff'd, 353 U.S. 373, 77 S. Ct. 995, 1 L. Ed. 2d 918; United States v. Iacullo, 7 Cir., 226 F.2d 788, 795 (1955), cert. denied, 350 U.S. 966, 76 S. Ct. 435, 100 L. Ed. 839; United States v. Yager, 7 Cir., 220 F.2d 795, 796 (1955), cert. denied, 349 U.S. 963, 75 S. Ct. 895, 99 L. Ed. 1285.
The evidence established the following facts. Defendant and his wife lived in Milwaukee, Wisconsin. They had been experiencing marital difficulties. In an attempt to reconcile their differences, they flew to Las Vegas, Nevada on February 19, 1961 with their two children on United Air Lines. They registered at the Stardust Hotel that evening.
The next day, February 20, 1961, defendant rented the Chevrolet automobile in question from Henry L. Resnick, owner and operator of Brooks Rent-A-Car Agency in Las Vegas. The rental took place in front of the hotel and was under a printed rental agreement. Defendant executed the agreement in triplicate and retained one copy thereof.
The rental agreement provided for a rental fee of $11.00 per day and 10 per mile. It further provided that the automobile could not be taken out of the State of Nevada without the consent of rental agency. At the time of renting the automobile, defendant paid a cash deposit of $50.00 and stated that he wanted the car for two days. He said he would return the car to the bell captain at the hotel. There was no conversation about the clause in the agreement concerning taking the car out of the state.
Defendant did not return the car to the bell captain or the rental agency. He did not pay the rental for the use of the car. The agency never received any further communication of any kind from defendant.
From February 17, 1961 to February 23, 1961, certain airlines, not including United Air Lines, were on strike. During this period United Air Lines, on which defendant and his family had traveled from Milwaukee to Las Vegas, operated regularly scheduled direct flights from Las Vegas to Milwaukee without interruption.
After a few days in Las Vegas, defendant desired to leave and go to California, but his wife decided she would rather return to Milwaukee. They returned to Milwaukee, stopping en route at Salt Lake City, Utah. Defendant drove the Chevrolet home with his wife and children. The trip took three or four ...