This is an appeal from a judgment of the District Court of the United States for the District of Columbia sentencing the appellant to imprisonment in a penitentiary. The case was tried to a jury. The appellant was charged with transporting a motor vehicle in interstate commerce, from the District of Columbia to Maryland, knowing it to have been stolen. The pertinent statute is the National Motor Vehicle Theft Act, 41 Stat. 324 (18 U.S.C.A. § 408). The text thereof is set forth in the margin. 1 At the close of the case for the *237 Government the appellant moved for a directed verdict in his own favor. During the argument of the motion, the United States Attorney advised the court that “the Government did not rely on the inference of guilt from possession of stolen property for a conviction in this case.” The trial judge overruled the motion. The appellant excepted and advised the judge that he would stand on the Government’s case, and requested the judge to instruct the jury to return a verdict of not guilty. This request the judge refused, and the appellant excepted. These rulings are assigned as error. The appellant contends that there was lacking, independent of his confession, substantial proof of 4he corpus delicti in that there was no evidence, independent of the confession, that he knew that the car was stolen. To the contrary the Government contends, apparently, that substantial proof of the whole of the corpus delicti, independent of the confession, is not as a matter of law requisite, and in any event that the scienter is not a part of the corpus delicti.
The evidence introduced for the Government was this: The car in question, a two seated Ford with District of Columbia tags, was stolen from in front of the residence of its owner in the District of Columbia on July 15, 1935. It was found by a police officer in the possession of the appellant in Baltimore on November 3, following. The appellant was driving it towards Washington; the officer apprehended him for speeding. When the car was thus discovered the rear seat and cushions had been removed, and the springs had been strengthened by adding leaves. The car smelled of alcohol. In it were gunny sacks and a robe. It bore New Jersey tags, and District of Columbia and Marjdand tags were found under the front seat, but the District of Columbia tags did not belong to it; and the original District of Columbia tags were not on it. The appellant had a District of Columbia driver’s permit, and a registration card issued to one Helen Kyle. The mileage of the car had increased since the date of the theft 6,-,500 miles. In a compartment in the back was $297 in cash. On his arrest the appellant said that this money had been given him in Washington to buy alcohol in Trenton, New Jersey, telling the arresting officer that the car and money were left at his home, which he said was in Washington, by one Monoi to make the trip. He said also on his arrest that he was coming from New Jersey. He told the arresting officer that he could have the money above mentioned if he would let him go. On the way back to Washington with another officer, the appellant admitted that he knew that the car he was using was a stolen car. To a third officer the appellant said that a man named Carroll brought the car to his house on Seventh Street in Washington and gave him money and the car to make the trip to New Jersey for alcohol. The appellant refused to tell where Carroll could be found, saying, “Never mind, I will take the rap for the car.” The appellant told this third officer that the cushions for the car were at his house on Seventh Street, S. W., Washington, D. C. The officer found the appellant’s mother there, but not the cushions. He never saw the appellant there. The cushions were returned to the owner of the car by the appellant’s attorney.
There is some division in the authorities in respect of the rule of proof in cases involving confessions. A distinguished American text writer, Mr. John H. Wig-more, is of the view that there should be no definite rule forbidding conviction of an accused in a criminal case upon his uncorroborated confession. He points out in respect of the English law:
“The proposed rule appeared in two variations; by the one, the corroborative evidence might be of any sort whatever; by the other, it must specifically relate to the ‘corpus delicti’, i. e., the fact of injury. The latter form tended to prevail; but in neither form did the rule obtain a general footing. So far as it can be supposed to obtain at all to-day in the English and Irish courts, it is apparently restricted to the case of homicide: . . .” [4 Wigmore, Evidence (2d Ed. 1923) § 2070, p. 406]
Further expressing his point of view as to the policy of such a rule, he states:
“The policy of any rule of the sort is questionable. No one doubts that the warning which it conveys is a proper one; but it is a warning which can be given with equal efficacy by counsel or (in a jurisdiction preserving the orthodox function of judges) by the judge in his charge on the facts. Common intelligence and caution, in the jurors’ minds, will sufficiently appreciate it, without a laying on of the rod in the shape of a rule of law. Moreover, the danger which' it is supposed to guard against is greatly exaggerated in common-thought. That danger lies wholly in a *238 false confession of guilt. Such confessions, however, so far as handed down to us in the annals of our courts, have been exceedingly rare (ante, § 867). Such a rule might ordinarily, if not really needed, at least be merely superfluous. But this rule, and all such rules, are to-day constantly resorted to by unscrupulous counsel as mere verbal formulas with which to entrap the trial judge into an error of words in his charge to the jury. These capabilities of abuse make it a positive obstruction to the course of justice.” [4 Wigmore, Evidence (2d Ed. 1923) § 2070, p. 406]
Mr. Wigmore concedes, however, that except in a few jurisdictions, 2 the courts in the United States have adopted a fixed rule that corroboration of a confession is necessary. 3 *He believes them to have been “chiefly moved, in all probability, by Professor Greenleaf’s suggestion that ‘this opinion certainly best accords with the humanity of the criminal code and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases.’ ” 4 Wigmore, Evidence (2d Ed. 1923) § 2071, p. 407 4 In respect of variations of the rule in the United States, Mr. Wigmore states that “in most jurisdictions the stricter form of rule is taken, and the evidence must concern the ‘corpus delicti’: . . .”4 Wig-more, Evidence (2d Ed. 1923) § 2071, p. 408.
The conclusions reached by Mr. Wig-more on the one hand, and by Mr. Green-leaf and the greater number of the courts in the United States on the other, differ because they proceed from contrary premises. Mr. Wigmore’s premise is that there is little danger of false confessions of guilt. He predicates this upon the proposition above quoted that “so far as handed down to us in the annals of our courts, [false confessions] have been exceedingly rare.” To support this statement he comments that “No trustworthy figures of authenticated instances [of false confessions] exist; but they are concededly few.” 2 Wigmore, Evidence (2d Ed. 1923) § 867, pp. 227-228. He then reviews in footnote a number of “the most notable in English and American annals” including Perry’s Case, 14 How. St.Tr. 1312, 1660 — where one of two brothers confessed that he, his brother and his mother had murdered his master, and they were executed, and two years later the master returned home explaining that he had been kidnapped and sold to the Turks. The premise of the reasoning of Mr. Greenleaf and the great majority of the courts in the United States is that there is real danger of false confessions, coerced or psychopathic. For this premise there seems now, whatever may have been the state of the data in 1923, the date of Mr. Wigmore’s work, substantial foundation, not only in the annals of the courts in the sense of the reported decisions thereof, but also in dependable reports of criminological investigations. The comprehensive and detailed Report on Lawlessness in Law Enforcement of the National Commission on Law Observance and Enforcement (No. 11, June 25, 1931) concludes that the practice of forcing confessions is widespread throughout the country. 5 &See.also on this *239 subject Leon R. Yankwich, “The Lawless Enforcement of the Law,” (1935) 9 So. Calif.L.Rev. 14, and see Note (1930) 43 Harv.L.Rev.
We do not assume to say that third degree methods are practiced in this jurisdiction. Happily no such practice has reached the attention of this court since
*240
Ziang Sung Wan v. United States,
In support of the point of vicw we take we note the following: In Tingle v. United States (CCA) 38 R(2d) 573, the defend- ^ a wardlousemall) was charged -with conspjrjng with. others 'to manufacture, sell and possess intoxicating liquor and propgrty desi d and intended for use in such manufacture, He signed statements that hg had leasgd a • tkm of hig warehousc for a bre and was aware of the pur_ poses -for which it was to be used. The c t ru]ecj •
“But in conspiracy cases, the unlawful combination, confederacy, and agreement between two or more persons, that is, the conspiracy itself, is the gist of the action, and is the corpus delicti charged. It is, therefore, primarily essential to establish the existence of a confederation or agreement between two or more persons before a conviction for conspiracy to commit an offense against the United States can be sustained. This statement requires no citation of authorities. It is equally true that ‘extrajudicial confessions or admissions are not sufficient to authorize a conviction of crime, unless corroborated by independent evidence of the corpus delicti.’ Martin v. United States (C.C.A.8)
Holding that the evidence in the case, outside the defendant’s statement, was insufficient to satisfy the rule stated, the court reversed a conviction. In Jordan v. United States (C.C.A.)
“The rule does not require that the independent evidence of corpus delicti shall be so full and complete as to establish unaided the commission of a crime. It is sufficient if the extrinsic circumstances, taken in connection with the defendant’s admission, satisfy the jury of the defendant’s guilt beyond a reasonable doubt. Bolland v. United States (C.C.A.)
In Mangum v. United States (C.C.A.)
“Evidence aliunde, however, as to the corpus delicti, need' not be such as to alone establish the fact beyond a reasonable doubt. It is sufficient if, when considered in connection with the confession, it satisfies the jury beyond a reasonable doubt that the offense was in fact committed, and the plaintiff in error committed it. State v. Rogoway,
In Flower v. United States (C.C.A.)
“A conviction cannot be had on the extrajudicial confession of the defendant, unless corroborated by proof aliunde of the corpus delicti. Full, direct, and positive evidence, however, of the corpus delicti, is not indispensable. A confession will be sufficient if there be such extrinsic corroborative circumstances as will, when taken in connection with the confession, establish the prisoner’s guilt in the minds of the jury beyond'a reasonable doubt.” [
See also United States v. Boese (D.C.)
“It must be conceded that there has been a very general concordance of judicial opinion in the United States that some sort of corroboration of a confession is necessary to conviction, and this concordance has extended to federal courts as well as elsewhere. U. S. v. Williams,
There are cases apparently contrary. Pearlman v. United States (C.C.A.) 10 F. (2d) 460, involved the same statute as does the instant case. The question there was “whether the proofs 'of the government measure up to the rule that there must be testimony tending to prove the corpus delicti independent of any confession of defendant.” Notwithstanding this implied recognition of the rule in terms of the statement of the question, the court found the law to be as expressed in a partial quotation of the remarks of Judge Learned Hand above. The Pearlman opinion states: “We find the general rule to be as stated by Judge Learned Hand, in . Daeche v. United States . . . :
“ ‘Any corroborating circumstances will serve which in the judge’s opinion go to 'fortify the truth of the confession. Independently they need not establish the truth of the corpus delicti at all, neither beyond a reasonable doubt nor by a preponderance of proof’ . . [10 F. (2d) 460, at page 462]
That partial quotation from Judge Hand might well seem to indicate that the corroborating evidence need not touch the
corpus delicti.
But that sentence alone, we think, does not reflect the true meaning of Judge Hand’s opinion. In Forlini v. United States (C.C.A.)
In the instant case the corpus delicti is transportation of the vehicle in interstate commerce from the District of Columbia to Maryland knowing that it was stolen. The contention of the Government that the scienter is not a necessary element of the corpus delicti cannot be sustained. There is nothing criminal under the statute about transporting a vehicle across a state line unless the person transporting it knows it to be stolen. The law is well settled that the corpus delicti includes not only the body or fact of the wrong, in the sense of the death in homicide or the loss of the chattel in larceny, but also the criminal means by. which the same came about. See 4 Wig-more, Evidence (2d Ed. 1923) § 2072, where the learned author, first expressing the personal view that the term corpus delicti ought to be taken to include only the first element, the fact of the injury or loss, and not the second, the criminality which is the source of the loss, nevertheless concedes that “by most judges the term is made to include the second element also.” Mr. Wigmore cites among other authorities Commonwealth v. Webster, Bemis’ Rep.(Mass.) 473, where Shaw, C. J., said: “In a charge of criminal homicide, it is necessary in the first place by full and substantial evidence to establish what is technically called the ‘corpus delicti’,—the actual offense committed; that is, that the person alleged to be dead is in fact so; that he came to his death by violence and under *244 such circumstances as to exclude the supposition of a death by accident or suicide and warranting the conclusion that such death was inflicted by a human agent; leaving thfe question who that guilty agent is to after consideration.”
The
corpus delicti
does not properly include, as a third element, the agency of the accused as the criminal. This would make the term synonymous with the whole of the charge, and such a definition has been repudiated. See 4 Wigmore, Evidence (2d Ed. 1923) § 2072 (3.), and therein cited Messel v. State,
Under the rules which we have laid down above we are unable to find warrant in the evidence presented in the instant case for denial of the motion for a directed verdict and refusal of the requested instruction of a verdict of not guilty. As stated above “the Government did not rely on the inference of guilt from possession of stolen property for a conviction in this case.” Why the Government made this waiver does not appear—conceivably because of Kasle v. United States (C.C.A.)
In accordance with the foregoing the judgment of the trial court is
Reversed.
Notes
Be it enacted by the Senate and Souse of Representatives 'of the United States of America, in Congress assembled, That this Act may be cited as the National Motor Vehicle Theft Act.
Sec. 2. That when used in this Act:
(a) The term “motor vehicle” shall include an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails;
(b) The term “interstate or foreign commerce” as used in this Act shall include transportation from one State, Territory, or the District of Columbia, to another State, Territory, or the District of Columbia, or to a foreign country, or from a foreign country to any State, Territory, or the District of Columbia.
See. 3. Tbat whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle, knowing the same to have been stolen, shall be punished by .a fine of not more than $5,000, or by imprisonment of not more than five years, or both.
Sec. 4. That whoever shall receive, conceal, store, barter, sell, or dispose of any motor vehicle, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be punished by a fine of not more than $5,000, .or by imprisonment of not more than five years, or both.
Sec. 5. That any person violating this Act may be punished in any district in or through which such motor vehicle has been transported or removed by such offender.
References to these are given in 4 Wigmore, Evidence (2d Ed.1923) § 2071, p. 407, note 1.
References to these are given in 4 Wigmore, Evidence (2d Ed.1923) § 2071, p. 408, notes 3 and 4.
The reference to Greenleaf is to Section 217, the full text of which as it appears in the 15th edition, Yol. 1, is:
“Whether extrajudicial confessions uncorroborated. by anj- other proof of the corpus delicti are of themselves sufficient to found a conviction of the prisoner, has been gravely doubted. In the Roman law, such naked confessions amounted only to a semiplena probatio, upon which alone no judgment could be founded; and at most the party could only in proper cases be put to the torture. But if voluntarily made, in the presence of the injured party, or if reiterated at different times in Ms absence, and persisted in, tbey were received as plenary proof. In each of the English cases usually cited in favor of the sufficiency of this evidence, there was some corrobo- • rating circumstance. In the United States, the prisoner’s confession, when the corpus delicti is not otherwise proved, has been held insufficient for his conviction; and this opimon certainly best accords with the humanity of the criminal code, and with the great degree of caution applied in receiving and weighing the evidence of confessions in other cases, and it seems countenanced by approved writers on this branch of the law.”
The Report reached the. following “Conclusions as to the Existence of the Third Degree”:
There are difficulties in forming conclusions as to the prevalence of the third *239 degree. Since the practice is illegal, there are bound to be professional denials of its existence from the police. On the other hand, the assertions of .... , prisoners and their counsel are likely to be biased and exaggerated. The problem is one of police administration and therefore local. Conditions may differ in near-by localities, even in cities in the same State subject to the same laws. Conditions in a given locality may change with a change' of administration. (The only thorough-going investigation in any community would be one by persons clothed, as we were not, with the power by subpoena to compel the attendanee of witnesses.)
But, after making all deductions for-the inherent uncertainties of the subject matter, we regard the following propositions as established:
I. Existence
The third degree — the inflicting of pain, physical or mental, to extract confessions or statements — is widespread throughout the country.
II. Physical Brutality
Physical brutality is extensively practiced. The methods are various. They range from beating to harsher forms of torture. The commoner forms are beating with the fists or with some im- ■ plement, especially the rubber hose, that inflicts pain but is. not likely to leave permanent visible scars.
III. Protracted Questioning
The method most commonly employed is protracted questioning. By this we mean questioning — at times by relays of questioners-so protracted that the prisoner’s energies are spent and his powers of resistance overcome. At times such questioning is the only method used. At times the questioning is accompanied by blows or by throwing continuous straining light upon the face of the suspect. At times the suspect is kept standing for hours, or deprived * „ , , , . , . . of food or sleep, or his sleep is pen- „ . * odically interrupted to resume questiomng.
IV. Threats
Methods of intimidation adjusted to the age or mentality of the victim are frequently used alone or in combination with other practices. The threats are usually of bodily injury. They have gone to the extreme of procuring a confession at the point of a pistol or through fear of a mob.
_ ^ V. Illegal Detention
Prolonged illegal detention is a common practice. The law requires prompt production of a prisoner before a magistrate- In a larSe majority of the cities baye _ investigated this rule is conS ^ 7 m,6 ’ , j ^
, j ^ Through illegal detention, timé is ob-tamed for p0investigation. Various de™es are employed to extend this time, fuch as takmS the prisoner to an out- ^ statlon’ sometimes to another city, sometimes even to a neighboring State, misleading friends or counsel as to the ^ace of detention and, m the meantime, shifting the prisoner to another place, Ia one.large tke Practice of shifting the prisoner from station to station has been so highly developed as to have, in local speech, a name of its own. But the practice is not confined to this city nor to the State in which it lies,
Though illegal detention is frequently a mere expedient to gain time for investigation, it may also be effective in “softening” the prisoner and making him more ready to confess. Especially is this so where, as in more than one city, many pristmers are jammed into the same cellj ^ t]bie result that ^ jg sanitary facilities inadequate, surroundings fi^y and verminous, and sjeep or rest next to impossible. II-legal detention is at times definitely used for +™ses compulsion-prisoners ar^d they ^ be detamed u-ntl1 they co_, ‘ , , ...
, , ... The praetlee of holdmg persons mcoro' «mmcodo-unable to get in touch with their families, friends or counsel — is, frequently encountered, so much so in certain places that there are cells called “incommunicado cells.” [Report on Lawlessness in Law Enforcement, etc., Section V, pp. 5 154]
Tbe same Report of National Commission, under the topic “Reported Cases . . ’ ^ ^ in Appellate Courts, states:
<ljrrom 1920 tQ ^ indusive) there were 67 cases in which appellate courts found it to be proved that third-degree methods were used to extort confessions from suspected criminals. These cases came from the Fifth and Ninth United States Circuits and the Court of Appeals of the District of Columbia and from 26 *240 State courts — Alabama, Arkansas, California, Colorado, Florida, Georgia, lilinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nebraska, New York, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Virginia, Washington, West Virginia, and Wisconsin.
“All the extracts and statements of fact in the text of this discussion are taken from these proved cases unless otherwise stated. In 39 additional cases there was evidence of the use of such practices although contradictory or doubtful. These additional cases come from some of the jurisdictions already mentioned and from six others — the Eighth United States Circuit and the States of Arizona, New Jersey, New Mexico, Ohio, and Utah. The whole list, therefore, comprises 106 cases from 31 States and 4 Federal circuits; every section except New England is represented.
“In England, by contrast, there has not been one reported case showing evidence of third-degree methods in the past 20 years.” [pp. 52-53]
The Report cites and discusses the cases in appellate courts. There are in-eluded from the District of Columbia Ziang Sung Wan v. United States,
Mr. Wigmore classifies Daeche v. United States with the cases reflecting “the stricter form of rule. ...” 4 Wigmore, Evidence (2d Ed.1923) § 2071, p. 408, note 4,
We do not rule upon the question whether there is such an inference, nor do we rule upon the question whether, if there is such an inference, it is within the power of the Government to waive it. No such questions were raised or ruled on below or raised here, and we therefore will not pass upon them here, especially as the defendant had a right to conclude at the trial that such an inference, if any there is, was out of this case. Had he had reason to conclude otherwise, he might well have wished to submit evidence on his own part.