Aрpellants, Maguire and Giles, were tried and convicted by a jury on an indictment charging interstate transportation of a stolen motor vehicle, in violation of the National Motоr Vehicle Theft Act, 18 U.S.C. § 2312. They appeal from the judgment and sentence entered upon the conviction.
The evidence is undisputed that a white, or near-white, 1962 Chevy II automobile, idеntification No. 20469N187504, as described in the indictment, was obtained by the appellants in Charleston, South Carolina on August 16, 1964, and that they thereupon proceeded to Albuquerque, New Mexicо, where, on August 31, they were apprehended and the vehicle impounded. There is a basic dispute, however, as to the manner in which the appellants acquired possession of the automobile.
The government’s version, as adduced largely through the testimony of the complaining witness, Hester, was that the appellants, by false pretenses, gained admission to his home in Charleston sometime between 1 A.M. and 2 A.M. on the morning of August 16, 1964, and that they then forced him upstairs, bound him with tape, and took, among other possessions, his automobile. The circumstances surrounding the apprehension of the appellants and the identification *444 and impounding of the automobile in Albuquerque oh August 31 were related by two police officers оf that city. The government also introduced in evidence the individual written statements of both Maguire and Giles, in which they described their acquisition of Hester’s automobile and their subsequent journey to Albuquerque from Charleston. Appellants maintain that they were walking along a street in Charleston and encountered Hester sitting in his automobile in a state of apparent sickness or intoxication; that they undertook to drive him home, whereupon he invited them in for drinks and then proceeded to commit a homosexual act upon Maguire; that when Maguire thrеatened Hester, a school principal, with exposure, Hester immediately volunteered his automobile, money and clothing in return for their agreement not to expose him; and that at Hester’s suggestion, they bound him in order to effect the appearance of an actual robbery. Throughout the trial, the defense’s consistent position was that the automobile was not stolen because there was permission and consent granted in exchange for appellants’ forebearanee from exposing Hester as a homоsexual.
Appellants assert that the trial court erred in denying their motions for acquittal made at the conclusion of the government’s case-in-chief, and timely renewed thereаfter, on the ground that the government had failed to establish by competent evidence each essential element of the offense charged. In considering the motion for аcquittal, the trial court must view the evidence in the light most favorable to the government, together with inferences which may fairly be drawn therefrom, and then determine whether there is substantial evidence from which a jury might properly find the accused guilty beyond a reasonable doubt. This standard is applicable to each of the several elements of the offense. Cartwright v. United States, 10 Cir.,
Appellants urge that the triаl court erred in refusing to inquire of the prospective jurors whether they would be prejudiced against the accused should they assert an act of homosexuality by Hester. An accused in a criminal case is entitled to be tried by an impartial jury and should be permitted suitable inquiry designed to ascertain any possible prejudice on the part of prospeсtive jurors. The extent of the inquiry to be made in determining whether any such prejudice exists must of necessity be left to the sound discretion of the trial court. Connors v. United States,
On cross-examination, Giles was askеd by the government if he had previously been arrested. Objection was made and sustained. He was then properly asked if he had been convicted of a prior felony, to which an affirmative reply was made. “When a defendant in a criminal case testifies in his own behalf, he may be asked on cross examination whether he has been convicted on a рrior charge. The testimony is admissible for the purpose of impeachment.” Thayer v. United States, 10 Cir.,
On rebuttal, the government recalled Hester and asked him a general, all-inсlusive question concerning the truth of appellants’ testimony regarding Hester’s behavior at the time his automobile was taken. Objection was made, and after some uncertainty as tо the proper formulation of the question, the court intervened and phrased the question itself. Appellants now argue that this intrusion in the questioning was prejudicial to their cause because it indicated to the jury that the court “sanctioned and supported” Hester’s denial of the homosexual act attributed to him by the appellants. Only recently have we reaffirmed the principle that “The trial Judge is not a mere moderator or umpire in the trial of a case in federal court, and, within reasonable bounds, he has the right to particiрate in eliciting the truth. He should, however, be careful not to become an advocate for any of the parties.” Ayash v. United States, 10 Cir.,
Appellants further complain about the government’s closing argument to the effect that even if the accused’s story were true, their conduct nevertheless amounted to extortion; the implication was that a conviction under 18 U.S.C. § 2312 would lie in any event. Objection was made, and the court replied: “I will instruct the jury as to what the law is.” And in denying the defense mоtion for a mistrial, the court further explained to the jury that “any statements by counsel on either side, are not the law, unless they correspond to what the court tells you.” We are satisfied that these comments by the court were sufficient admonition to the jury and that, along with full instructions, they cured any prejudice that may have resulted from the prosecutor’s remark.
Finally, appellants assert that the trial court erred in failing to instruct the jury that specific intent feloniously and permanently to deprive the owner of the rights and benefits of ownership in his аutomobile is a necessary element of the offense charged. Suffice it to say that we have carefully reviewed the trial court’s instructions and conclude that they are a fair and accurate representation of the law applicable to a prosecution under 18 U.S.C. § 2312.
Affirmed.