Before HASTINGS, Chief Judge, and DUFFY and KNOCH, Circuit Judges.
This action was initiated by a two-count indictment which in Count I thereof charged that defendant-appellant, Lawrence Wilcher, unlawfully had in his possession, knowing them to be stolen, "a number of John Deere farm tractors of a value in excess of $100,00 each, to wit: $4,000.00, more or less each," part of, and stolen from, an interstate shipment of freight from Waterloo, Iowa to Russellville, Alabama.
Count II charged Engbert John Terpstra in identical terms. Only the date of the offense was different, Mr. Wilcher being charged with possession on May 13, 1962 and Mr. Terpstra on May 16, 1962.
Defendant's motions to dismiss the indictment and for severance were both overruled prior to trial. Shortly prior to trial, Mr. Terpstra pleaded guilty. Although he was not tried with defendant-appellant, Mr. Terpstra was an important witness at the trial. The jury brought in a verdict of guilty. Defendant was sentenced to serve three years and to pay a fine of $2,000.
At the trial, Robert Dale Wilson, a truck driver for Ringle Express, Inc., testified that in Waterloo, Iowa, he picked up a load of five John Deere farm tractors consigned for shipment to the Felton Implement Co. at Russellville, Alabama. He was authorized to layover in Indianapolis, Indiana, en route, during the New Year holiday. On December 30, 1961, he left his trailer load of farm tractors at a service station. When he checked on December 31, 1961 and on January 1, 1962, Mr. Wilson found the tractors still there. When he arrived at the station on January 2, 1962, however, neither the trailer nor the tractors could be found. He testified that he did not take the load or authorize anyone else to do so.
In May, 1962, the same five tractors were seen in the possession of the defendant in Greensburg, Indiana. Defendant stated that they were offered to him by three men.He acted as middleman for them in two sales of the tractors to Mr. Terpstra. He delivered two tractors to Mr. Terpstra on May 13, 1962 and the remaining three on May 16, 1962.
Mr. Terpstra testified that he paid defendant $2,000 (for two of the tractors) and $3,900 (for the remaining three); that the defendant told him the tractors were "warm" and that "nobody would find them in the hills." He testified further that he subsequently disposed of the three tractors evidently those referred to in Count II which charged Mr. Terpstra alone, in a trade for dairy cattle. These three tractors ultimately came into possession of a purchaser who checked with the John Deere dealer in Clayton, Indiana. It was ascertained that these were the same tractors which Mr. Wilson had temporarily left at the service station in Indianapolis.
Federal Bureau of Investigation Agent Raymond A. Tennyson testified that defendant admitted to him that he had told Mr. Terpstra that the tractors appeared to be "hot," first because the individuals who sold them had no bills of sale at the time of the transaction; and although, the tractors were allegedly being sold because of damage in shipping, they were in fact only slightly damaged and were being sold for substantially less than their value. Defendant himself testified that he had told Mr. Terpstra only that it was a "funny deal" and that the tractors "could be warm."
Defendant attacks the indictment as defective in failing to allege:
(1) ownership of the goods stolen; (2) identity of the specific carrier or custodian from which said goods were stolen; (3) any description of the vehicle from which the goods allegedly were taken; (4) the place from where the subject tractors were removed (as distinguished from the venue where the crime of "receiving" the stolen property was laid); and (5) a description of the tractors stolen; the complete omission of which prejudiced the accused in preparation of his defense; and would be prejudicial to defendant-appellant in a plea of prior adjudication in a subsequent prosecution.
Error is charged in admission of documentary exhibits which described the tractors as "stolen" although those who made up the documents had no first hand knowledge that the tractors had in fact been stolen. Defendant also contends that the government failed to prove that the tractors were stolen from interstate commerce or that defendant had knowledge of their character as stolen property.
We will not discuss these alleged errors because in our opinion failure to sever the two counts of this particular indictment for trial constituted such prejudicial error as to require reversal and remand for a new trial.
As indicated, each defendant was named in a separate count. No connection between the two offenses, which were described as occurring on separate dates, was alleged.
As Mr. Terpstra had pleaded guilty, defendant's counsel at the outset of the trial asked whether the indictment as set out in the instructions to be given would include only the one count charging defendant. The Court at that time said:
"So far as I know, we will allude to only the one Count. * * * and I have no knowledge of what the evidence will show."
With specific reference to the plea of guilty to the second count which did not concern defendant, his counsel asked:
"In the event a specific question were put to a witness relative to the fact that Mr. Terpstra has changed his plea. ...