This appeal is from a judgment of conviction on a charge that defendant “did wilfully, unlawfully, knowingly and feloniously transport and cause to be transported in interstate commerce from Overland Park, Kansas, to Kansas City, Missouri, money, United States currency, of the value of Five Thousand ($5,000.-00) Dollars, or more, knowing same to have been converted and taken by fraud, in vioIation of gection 2314, Title 18> United stateg Code „ The indictment algo cbarged ^ defendant «did wilfulIy> knowingly; unlawfuliy and feloniously transport in interstate commerce from 0verland Park; Jobnson Count Kansag) ^ Kangag City Missouri> one Walter K. Wat who had tberetof(>re been un. lawfulI seized confined, inveigled; de-coyedj kidnaped> abducted, and carried away and held for rangoni) reward> and otherwise, all in violation of Section 1201, Title 18, United States Code.” As defendant was acquitted on the kidnap-Jug charge the testimony bearing upon that issue is of relatively little importance to a consideration of the issues kere involved.
While defendant was charged as a principal the proof showed that the principal actor was one Kenneth Warren Smith and the claim of the government as disclosed by the court’s instructions was that the defendant became liable as a principal because he aided and *328 abetted Smith in the perpetration of the alleged crime.
The evidence showed that on January 18, 1956, one Kenneth Warren Smith appeared at the office of one Walter K. Waters in Overland Park, Kansas, misrepresented himself as a member of the Kansas City, Missouri, Police Department and falsely introduced defendant as a member of the staff of the Prosecuting Attorney of Jackson County, Missouri. Waters had previously been charged by certain persons, unnamed in the record but who falsely impersonated officers, with some homosexual crime and had apparently put up $5,000 in the nature of “hush money” or bail.
On the occasion here involved Smith told Waters that the $5,000 which Waters had previously furnished had been mishandled and that an additional $5,000 would be needed to prevent prosecution, Relying on this statement Waters went to his bank in Overland Park, Kansas, and in the company of defendant, but in the absence of Smith, obtained the money by redeeming some government bonds, Emerging from the bank, Waters placed the envelope containing the money beside him on the front seat of his automobile and drove the trio across the Missouri-Kansas state line into downtown Kansas City, Missouri. There, in front of the Jackson County court house, Smith who was sitting in the back seat of the car said, “Where is the money?”, to which „r ’ , i(TT ., . „ , ((T Waters answered Here it is and I P1Cít ? ° and he took it out of my hand. Waters picked up the envelope preparatory to posting the bond himself but Smith told Waters that he, Smith, would post the bond. Smith then entered the building, emerging a short time later with assurances that everything was taken care of and the parties then dispersed. The testimony will be further developed in the course of this opinion.
At the close of the government’s testimony and again at the close of the case defendant moved for judgment of acquittal, specifically challenging the sufficiency of the evidence to sustain any of the essential elements constituting the crime charged in the transportation count of the indictment. The motions were denied and the case was submitted to the ^ on instructions to which various exceptions were saved by the defendant The jury returned a verdict of not guilty on the kidnaping count and of on the count charging transPotation of stolen money m interstate commerce, pursuant to which the court entered Judgment and sentence of con &e judgment and sentence ao entered defendant seeks reversal substantially the following grounds: J; The evidence is insufficient to sustain the verdict in that itappears from the undisputed evidence (1) that the stealing; converting or taking by fraud oecurred after the transportation of the $5,000 in interstate commerce, (2) that the victim rather than the defendant transported the $5,000 in interstate commerce and (3) that the defendant neither aided, abetted, counselled, induced, procured nor caused the transportation of the $5,000 in interstate commerce, and 2. that the court’s instructions to the jury considered as a whole exceeded the allowable scope of judicial comment, amounted to advocacy 0f the government's case, directed, at ieast in part, the return of a verdict of guilty, invaded the province of the finders 0f fact and erred in not submitting the defendant’s defenses to the indictment.
... , The statute under which defendant prosecuted and convicted, Section 2314, Title 18 U.S.C., so far as here per- ^ reads ag m
* Whoever transports in interstate or foreign commerce any^ goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud * * * (shall be guilty of the offense, etc.) (Parentheses supplied) •
The gist of the offense described by this statute is manifestly the transportation of the stolen or converted property in interstate commerce. The
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statute does not purport to punish for larceny but for the transportation in interstate commerce of stolen property. To constitute the offense the property transported in interstate commerce must have been stolen property and it must have been of that character before it was transported in interstate commerce. It is therefore of the utmost importance to determine whether this property had been stolen or converted before it was transported in interstate commerc
e.
Ackerson v. United States, 8 Cir.,
“ * * * it must be assumed that Congress had in mind larceny as defined by the common law. * * * At common law larceny may be said to consist in ‘the felonious taking by trespass and carrying away by any person of the goods or things personal of another from any place, without the latter’s consent, and with the felonious intent permanently to deprive the owner of his property and to convert it to the taker’s own use.’ 32 Am.Juris., Sec. 2, p.893."
It is to be noted here that the victim, Waters, personally secured the money from the bank. It was turned over to him in an envelope. He took it into his car, placed it on the seat beside ,. , , , . . . „ him and it was not touched by Smith . . , nor defendant while it was m the state j. rr . . , ... ,, of Kansas, nor indeed, until the com- . . .. , ,, T , pletion of the transportation at the Jack ri , , , . Tr son County court house m Kansas City, - mi xi • , , Missouri. There the evidence showed „x j. „ TTr , .... without dispute that Mr. Waters still , , , , .... , had control and dominion over it as he • , , .. -x,. xi . . x x j. picked it up with the avowed intent of posting it as bond and it was then taken from his hands by Smith. The testimony in this regard was that produced by the government and is without dispute. We quote excerpts from this testimony taken from the original transcript as follows:
“Q. When you left the bank you carried the money? A. I carried the money. Mr. Loman went around to the other side of the car and got in and I got in on the driver’s side and laid the package down between us.
.x. # #
, , . What wh“ ]Ü,ar ® near e ac son oun ^ Courthouse? A When we parked the car I expected I was to go m ... „ ... , , , TT with Smith to make the bond. He , ,, told me, no, he didnt want me to, , , ’ didn t want to embarrass me that TT . ^ * W&S IT* t(> make++tte b°nd f°r me’ “d Loman was sitting where he sat all the time, and I was sitting here, and Smith said, ‘Where is the money?’ And I said, ‘Here it is’, and I picked it up, to the best of my memory, and he took it out of my hand and I started to get out of the car to go with him and he said, no, I didn’t need to go because he was going to take care of it and didn’t want to embarrass me that way.
"Q- When 3™ Put the money 015 the seat, now you were going back, coming back to Missouri for the purpose of posting your own bond, were you not, Reverend? A. Yes, sir.
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v , ,, ,. Q. Now, up to the very time ,, , . . . T, that you arrived m Kansas City, . T . , . . . Missouri, I am just going to ask ... , ,T , ,, you this general question, and then . , , , ,, ,. ’ going back up to the time you ar- . f . „ „. . . rived m Kansas City, Missouri, in . , . ,, ,, , , front of the courthouse, had any- . , one except yourself exercised any , . , . . . control or dominion over this mon- ? A No ey' ' °'
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“Q. Now, you were the one up to the very moment that you arrived in Kansas City, Missouri, who was going to post this bond, isn’t that true? A. Yes, sir.
*330 “Q. And did you have any intention of turning the money over to Mr. Hughes, Mr. Loman or anybody else? A. I had no such intention, only as it was to be used for the posting of the bond.
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"Q. I say after you drove up there and parked your car on the street, you could have picked up the money and put it in your pocket and said, T am not satisfied with this’, or anything you wanted to, couldn’t you? A. I presume I could sir.”
ttttt j . , ... , .. We do not think this testimony sum- • .i , , ,, , , , cient to show that the money had been stolen from Waters until after it had v . • j jj -i ■« t} i been transported from Overland Park, Tr 4. Tr n-± i\/r- • Kansas to Kansas City, Missouri.
0 „ r.^n.4.7 In 52 C.J.S. Larceny, § 6, p. 801, the author of the article on larceny, m referring to the sufficiency of the acts of securing dominion over the subject of alleged larceny, says:
^ “ While ^ the term ‘taking’ alone does not include all the elements of a criminal offense, in order to constitute a taking the prospective thief must have obtained at some particular moment the complete, independent, and absolute possession and control of the thing desired adverse to the rights of the owner therein. * * * If the possession of the would-be taker is imperfect in any degree, or if his control of the thing 'desired is qualified by any circumstance, however slight, the taking is incomplete and the act is only an attempt.
See also United States v. Mercer, supra; Pearson v. United States, 6 Cir.,
The contention is that Smith had constructive possession of the money before it left the State of Kansas because it is said the victim thought he was under arrest. The trouble with, this .contention is that it is hot sustained by the facts and circumstances. While it will not, as a matter of law, affect the verdict in this case it is, we think, worthy of passing note that the jury found the defendant not guilty on the kidnaping charge. This was based on the very evidence which the government now contends proved that the $5,000 was in Smith’s constructive possession. Waters testified to a former similar experience in which an unknown man representing himself as a policeman convinced Waters that he was charged with a very offensive sex crime. As in the instant case he was induced to put up $5,000 either as bail or “hush money” . on the assurance that this would, m _ , . ,, . effect, quash the proceeding and preserve his good name. In the instant case it ° , was represented that the first under- . . . ; . , , ,, . taking had been mishandled and that the ma^er was agajn threatening and woui<j be revived unless Waters posted ?5)000 presuinably as bail. Apparently Waterg wag thoroughly convinced that thiS was the situation and he was anx-ions to correct the bungling of the procedure and preserve his good name, After being so convinced there is noth-rng to indicate that he did not cooperate jn the alleged effort and he was apparent-iy anxious to accomplish the alleged purpose of the enterprise. In furtherance 0f the project he went to the nearby schoolhouse where his wife was employed and secured a key to his safety deposit box. He secured the money as hereinbefore related and his purpose was personally to post it as bail and he accompanied Smith and the defendant with that purpose in view and with the money in his possession. No one touched this money except Waters until after it had been transported in interstate commerce. When they arrived at the Jackson County court house in Kansas City, Missouri, Smith, who was riding in the back seat, asked where the money was. Manifestly, he did not have it but Waters had it, picked it up and Smith took it from his hand and then for the first time Waters learned that Smith, not Waters, would .post the money. In United States v. Mercer, supra, the facts in many respects
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are like those in the instant case. There it was claimed that there was construe-tive possession of the money when it was transported. In the course of the opinion it is said [
“The failure of the government’s proof under count four is that Mrs. Rebhan’s money had not been taken from her by fraud until she turned it over to the defendants in Phcenix, after the interstate transportation of the money as charged in the indictment was completed. As this Court reads Section 2314, an offense is not committed under that section unless there is an interstate transportation of money which has been stolen, converted or taken by fraud. * * *
The government does not seriously dispute the requirement that the money must have been taken by fraud at the time of its transportation interstate; the government does contend that the taking of Mrs. Rebhan’s money by fraud occurred when she left Phoenix to go to San Francisco to get her money, or at least that the taking occurred when Mrs. Rebhan took possession of her money in San Francisco before taking it to Phoenix. In other words, the government contends that the defendants used Mrs. Rebhan as an agent to take her money from herself by fraud. Such a theory is not persuasive. Nor has the government ‘ cited this Court to any precedent for its contention. It is obvious that although Mrs. Rebhan acted under the influence of the defendants’ fraudulent misrepresentations when she travelled to San Francisco ... ,, , to get her money, nevertheless she had complete dominion and control of her • money until she handed it over to the defendants in Phcenix. At any time during her trip from San Francisco to Phcenix with the money, Mrs. Rebhan could have changed her mind about entrusting the defendants with her money. The government’s evidence establishes that Mrs. Rebhan’s money had not been taken by fraud until after the interstate transportation alleged in the indictment had con-eluded.”
in the instant case we think there is escape from the conclusion that the money had not been taken by fraud until after the interstate transportation alleged in the indictment had concluded^. we^ b® that the defendant is subject to prosecution for the larceny of ^is money so taken from Waters in Jackson County, Missouri but, as we ^ave already noted, the gist of the offense charged in this indictment is the transportation m interstate^ commerce,
Having reached the conclusion that the $5,000 in the instant case had not been stolen until after it had been transported jn interstate commerce we pretermit consideration of the other contentions urged by defendant on this appeal. The judgment appealed from is therefore reversed with directions to enter judgment 0f acquittal on count two of the indictment