McALLISTER, Circuit Judge.
The sole question presented by this appeal from a judgment rendered upon a verdict finding appellant guilty of violating 18 U.S.C. § 2312, is whether the appellant was entitled to a judgment of acquittal at the close of appellee's case.
The appellant and Joseph Conciello were jointly charged with having transported stolen automobiles in violation of law. The first count of the indictment averred that on and about the second day of September, 1951, the defendants transported a stolen motor vehicle, to wit, a 1951 Oldsmobile, Motor No. 8C204726, from Detroit, Michigan, to Fayette County, Kentucky, knowing the same to have been stolen. The second count of the indictment charged defendants with the transportation, on September 2, 1951, of a stolen motor vehicle, to wit, a 1951 Oldsmobile, Motor No. 8C203501, from Detroit, Michigan, to Fayette County, Kentucky, knowing the same to have been stolen.
Appellant was tried alone due to the fact that Conciello, at the time of the trial, was confined in the penitentiary. Evidence was presented to the effect that two 1951 Oldsmobile No. 98 Holiday cars were stolen from the fenced-in car lot of W.S. Sheldon, a dealer in Detroit, Michigan, on the week-end between August 31 and September 4. Sheldon went to Knoxville, Tennessee, identified one car, and personally had it redelivered to him. The second car was trucked back from Lexington, Kentucky, and delivered to Sheldon in Detroit.
Appellant contends that car 8C204726, covered by the first count of the indictment, was not identified, and on this question, the district court, in denying a motion for verdict of acquittal, stated:
"they have proven that a car described here in Count one was found down here stolen from the car lot in Detroit, Michigan, was found out here on the Frogtown Road in Fayette County, and that it had this Defendant's fingerprints on it, of this man on this stolen automobile."
Without discussing the details of the evidence, we are of the opinion that the car on which Camilla's fingerprints were found was sufficiently identified as one of the stolen cars in question.
There is not, however, sufficient evidence to sustain the verdict of appellant's guilt. He was, admittedly, in the company of Conciello, with whom he was jointly indicted, on many occasions in Lexington, Kentucky. Conciello had two stolen automobiles in Lexington. He turned one of them over to a man named McGill to sell for him in Knoxville, Tennessee. McGill was a resident of Lexington and worked at a used car lot. He was the government's principal witness, and it was sought to prove by him that both appellant and Conciello had carried on negotiations with him and arranged for him to take the Oldsmobile to Knoxville to sell it. McGill, however, denied that he had ever talked with appellant about the Oldsmobile and stated that his entire conversation and negotiation with respect to this car were solely with Conciello and that appellant was not even present at their conversations with regard to this car. McGill stated that his only conversation with appellant concerning an automobile was about a Buick car that appellant was trying to sell. This Buick was actually owned by appellant.
The other Oldsmobile which had been stolen in Detroit was found on a country road in Kentucky four days after the seizure of the car which McGill had taken to Knoxville. It was admitted that appellant's fingerprints were found in the car, on the rear vision mirror, on September 8, 1952, about a week after the two cars had been stolen. Many other fingerprints were found and "lifted" by the police, but the officer taking the fingerprint impressions testified that he didn't know whose prints they were at that time; and these other fingerprints were never identified on the trial.
The government rested its case on the above evidence, and counsel for appellant moved for a directed verdict of not guilty. The district court held that the government had proved the car in question was stolen; that appellant's fingerprints were found in it shortly after it was stolen; and that this established a prima facie case of appellant's guilt of transporting a stolen automobile in interstate commerce from Detroit, Michigan, to Lexington, Kentucky. But if this were so, the government would have established an equally strong prima facie case against any of the other persons who had associated with Conciello, and whose fingerprints were likewise found in the car, a week after it had been stolen; and this seems untenable. In fact, under such a rule, any acquaintance of Conciello, who had been seen riding with him in the car during the time he had it in Lexington, could, for this reason alone, have been found guilty of the crime charged.
From the foregoing, there was not sufficient evidence of appellant's guilt of the crime charged to be submitted to the jury at the close of the government's proofs. There appears no proof or evidence from which inferences could be drawn that appellant knew that the Oldsmobile had been stolen; and there was no proof that appellant and Conciello were jointly engaged in selling cars, or that appellant had ever tried to sell any car, except his own Buick. The fact that appellant had been in the stolen car sometime during the period of a week between the time the car was stolen and while it was in Lexington, Kentucky, as had, apparently, numerous other persons, according to the fingerprints therein found, and the further fact that appellant was also in the company of Conciello at various times during the same period, as were other admittedly innocent persons, are not inconsistent with appellant's innocence, for this shows nothing more than association with one guilty of crime; and this is not enough to sustain a verdict of guilt.
Because of the failure of proof, a verdict of not guilty should have been directed on appellant's motion at the close of the government's proofs. The judgment is, accordingly, reversed, and appellant is discharged.
ALLEN, Circuit Judge (dissenting).
I regret that I cannot agree with the judgment of reversal entered by my colleagues. In Lexington, Kentucky, where one of the stolen cars was recovered, Camilla was seen around September 1, 1951, in company with Conciello, who had been indicted jointly with Camilla. At the time when Conciello was seen with Camilla in Lexington Conciello was engaged in selling one of the stolen cars. The other stolen car was found in Fayette County, Kentucky, September 8, 1951, having been abandoned with the keys in it. It contained certain latent fingerprints, eight of which were stipulated by counsel to be those of Camilla. These fingerprints were on the rear view mirror. The above testimony unexplained was sufficient to require the submission of the case to the jury, which found Camilla guilty.
Its verdict and the judgment based thereon should not be set aside.
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