Claude R. Allen v. United States

257 F.2d 188, 103 U.S. App. D.C. 184, 1958 U.S. App. LEXIS 4469

Opinions

PER CURIAM.

Three men, including appellant, were charged with unauthorized use of an auto, D.C.Code § 22-2204 (1951). When the police came upon the scene at 4:00 a. m. December 21, 1956, they saw one defendant at the wheel of the car whose motor was running, another defendant 50 feet ahead siphoning gas from a parked truck, and appellant first standing beside and then walking away from the car. As the police later discovered, the left front car window had been broken, the title card to the car was in an envelope in the street near the three defendants. The car had been moved from another part of town the preceding day where it had been left with the ignition unlocked, and it had a quarter of a tank more gas in it than before it had been taken. The evidence was that the three defendants were acquainted and had been together at some point earlier in the evening. Prior acquaintance was confirmed by the fact that defendant Butler had the day before painted the home of appellant’s mother.

Upon seeing the police, the driver attempted to drive off, but the car stalled. As appellant started to walk away, he was called back by the officers. He offered no plausible explanation to the officers of his presence at that place in these circumstances.¹ Appellant did not take the stand at trial. The jury was instructed as to unauthorized use and aiding and abetting, and returned a general verdict of guilty.

Appellant argues that he could not have been found guilty of unauthorized use, because there was no evidence that, to use the statutory terms, he did “take, use, operate, or remove, or cause to be taken, used, operated, or removed,” the car. He claims that possession by him of the stolen car was essential to prove guilt² and here the possession was not made out, and the most that could be said is that he was standing near the car. We need not decide this question, for the facts warranted a jury in finding that appellant aided and abetted the unauthorized use, which, of course, puts appellant in the shoes of the principal offender.³ The instructions as to aiding and abetting were adequate,⁴ and the conviction must be Affirmed.

Footnotes

1

. He and defendant Dorman had the same story to tell the arresting officers, vie., that they just happened to meet while walking at 4:00 a. m. of a winter morning; they walked together for one block (which brought them to the scene of the crime), except that Dorman walked 50 feet behind because he had a “bad foot.” Hence, when the police arrived, Dorman was 50 feet away from appellant siphoning gas from a truck, although by his story he was simply out walking and thus had no pressing need to steal gas; appellant was standing at the side of a stolen car, unaware, as he claimed, that the third defendant was in the ear. The third defendant’s story corroborated the others’. He stated he had got into the car because he was cold and wanted a place to sleep, and that the explanation for the car lurching forward was that his foot must have hit the starter while he was asleep. These facts are derived from the testimony of the arresting officers; appellant did not testify.

2

. Cf. Gilbert v. United States, 1954. 94 U.S.App.D.C. 321, 215 F.2d 334, which holds that unexplained possession of recently stolen property is prima facie evidence of guilt.

3

. D.C.Code, § 22-105 (1951) makes aiders and abettors chargeable as principals. Cf. Lanliam v. United States, 1950, 87 U.S.App.D.C. 357, 185 F.2d 435; Williams v. United States, 1954, 94 U.S.App.D.C. 219, 215 F.2d 35.

4

. The court said, “if you find beyond a reasonable doubt that any particular Defendant did not aid or abet a principal offender in the said crime, of unauthorized use of a motor vehicle, with which Defendants are charged in this case, then and in that event, this instruction on aiding and abetting would not be applicable to that particular Defendant. * * * ” (Emphasis added.) Thus it might appear that the burden was put upon the wrong side. But no fewer than seven times immediately preceding the charge quoted above, the court spoke of the reasonable doubt test and the fact that the Government had to sustain this burden. Taken in context of what is an eminently fair charge, we are satisfied that no prejudice resulted.