Appellant was convicted under a six-count indictment charging him with transporting six motor vehicles in interstate commerce, knowing them to be stolen. 18 U.S.C.A. § 2312, Dyer Act. 1 The trial judge sentenced him to imprisonment for a period of two years on each count, the sentences to run consecutively.
Appellant’s argument on appeal is a threefold one. First, he argues that the evidence was insufficient to convict him and that thе trial court thus erred in not granting his motion for a judgment of acquittal. Second, appellant charges the trial judge with error in admitting certain evidence of an earlier trip by appellant and his son in a stolen vehicle. Third, appellant urges that four of the sentences are void on the theory that only two offenses were committed.
On July 15 and 16, 1947, appellant’s son stole three automobiles from the streets of New York City. On July 23 thеse vehicles were transported to Harrisburg, Pa., where they were sold to a used car dealer. Appellant’s son drove one of the cars; two drivers employed for the purpose drove the othеr two stolen cars. Appellant drove a fourth car in order to 'provide return transportation for his son and the two drivers. The three stolen cars sold in Harrisburg on July 23 are the basis for three counts of the indictment. Thе following month, substantially the same pattern of events transpired. Between'August'8 and 16 again three cars were stolen by appellant’s son, and on August 19 the vehicles were transported from New York to Harrisburg under circumstances identical to the July transportation. This second group of three vehicles represents the subject matter of three additional counts of the indictment. '
Did appellant cause these six autоmobiles to be transported in interstate commerce, knowing them to be stolen? The theory of the government is that appellant and his son were co-partners in the unlawful enterprises outlined above; .thаt the drivers were employed by both appellant and his son; and that each was equally responsible for the interstate transportation of the vehicles. The defense, on the other hand, portrays aрpellant as a mere innocent agent who had been hired by his son to chauffeur the cars. The jury accepted the theory of the government, and we think there is clearly sufficient evidence to support their finding.
The record reveals that on two occasions appellant’s son, in introducing appellant to Harrisburg dealers, remarked that the two were in business together. While it is true that the son took the active role in hiring the drivers, there is evidence that appellant had süpervisory control over them. Counsel stresses the fact that appellant took no part in the negotiations with the Harrisburg dealer. There is еvidence, however, that appellant was just across the street from the car lot and that appellant’s son consulted with his father three or four times with respect to price. After the sales were сonsummated, appellant removed the New York license tags from the cars, stating to the dealer’s salesman: “I want to take them back to the owners. They allowed me to transport the automobiles оver to Pennsylvania and use those tags and then I have to deliver them back.” Immediately after each of the two groups of sales, appellant made substantial deposits in his bank account.
The only witness сalled by appellant was his son. He testified that he had employed his father as a chauffeur at $50 a day and that neither his father nor any of the drivers knew that the cars covered by this indictment were in fact stolen. The jury was told that the father believed his son was *971 engaged only in a legitimate used car business. The son further testified that he owed his father a large sum of money and that the substantial deposits made by appellant in July аnd August represented payments on these obligations. 2 In order to rebut this defense, the government cross-examined the son regarding trips made to the South. The son admitted that his father and he travelled to Georgia in May 1947 in a stolen car, that appellant applied for a Georgia registration for the car, and that it was subsequently sold either in Georgia or Louisiana. The son admitted that he used assumed names and that appellant had knowledge of this. Moreover, the fact that the son had served a prior prison sentence growing out of an automobile theft was well known to appellant. The factual disputes were сlearly for the jury. We think that the total effect of this evidence justifies the jury’s conclusion that appellant possessed the requisite criminal intent. If the jury believed the government’s witnesses, it certainly might have concluded that appellant was not merely an innocent chauffeur, but an active partner in these illegal operations.
Appellant contends the evidence of the trip to Georgia was inadmissible on the ground that there was no evidence that appellant knew the automobile used on that trip was stolen. That evidence was, of course, admitted to negative appellant’s defense that he was a mere dupe. It is for the trial judge to decide on the facts of each case whether the offered evidence forms the basis of a sound inference as to guilty knowledge of the accused in the transaction under inquiry. United States v. Brand, 2 Cir., 1935,
Appellant lays his principal stress on the contention that only two of the sentences are proper. His argument is that even if appellant did possess the requisite criminal state of mind, the transportations of July 23 constituted only one offensе and the transportations of August 19 likewise constituted only one offense. Appellant asserts that the record reveals that on each of the two days, three vehicles were transported from New York tо Harrisburg in one convoy, the three cars in each convoy thus having crossed the state lines at substantially the same time.
3
Hence, we are urged to hold that on each of the two dates there was but a single transportation in violation of the Dyer Act. Appellant relies on Robinson v. United States, 10 Cir., 1944,
Various tests have been applied to determine whether the offenses charged in several counts of an indictment are in fact identical. One such test calls for a determination ' of whether the same evidence necessary to prove Gaunt One will also satisfy Count Two. If the same evidence will suffice, then there has been only one offense. Sеe Ebeling v. Morgan, 1915,
For the above reasons, the judgment of the district court will be affirmed.
Notes
. “Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or' both.” 18 U.S.C.A. § 2312.
. The son testified that, his financial obligations to his father arose in several ways. The son had stolen a largе sum from his father which he now felt obligated to return. Moreover, his father and mother had been rearing the son’s child, for which they were entitled to compensation.
. The record is unclear as to whether the cars actually did proceed in a single convoy. We shall assume arguendo that appellant’s version of the facts is accurate..
. St. Clair v. Hiatt, D.C.,