(concurring in part and dissenting in part).
,1 cannot agree that there is substantial evidence to sustain the conviction on either count in the indictment. Congress, by enacting the National Stolen Property Act,. Title 18 U.S.C.A. § 415 (1948 Ed. Sec. 2314), has seen fit to make it a federal crime to transport interstate property which had theretofore been stolen, feloniously converted, or taken feloniously by fraud only when the value of the property is $5,000 or more. If the property so transported is of *373the value of less than $5,000, it is not a federal crime and the punishment for whatever offense has been committed is left to the states. It is also -a federal offense to conspire to transport in interstate commerce any property which had theretofore been stolen, feloniously converted, or taken feloniously by fraud having a value of $5,000 or more. Title 18 U.S.C.A. § 418a (1948 Ed. Sec. 371). Count One of the' indictment alleges that the defendants from on or about June 10, 1948 to June 25, 1948, conspired to transport and cause to be transported in interstate commerce wheat of a value exceeding $5,000 theretofore stolen, fraudulently converted, and taken feloniously by fraud, and alleged eight ■overt acts to carry out this conspiracy. ■Count Two charged the defendants with a ■substantive violation of the National Stolen Property Act alleging that they transported and caused to be transported in interstate commerce from the State of Oklahoma to Wichita, Kansas, approximately 3480 bushels of wheat of the value of more than $5,000 which had theretofore been stolen, feloniously converted, or taken feloniously by fraud.
To prove both counts, the prosecution relied solely upon the activity of the defendants in connection with the purchase of nine truck and trailer loads of wheat in Oklahoma on June 20 and June 22, 1948, and the transportation of the same to "Wichita, Kansas, on the 22nd of June. The evidence established that on June 20th some of the defendants purchased three loads of wheat from an elevator at Ponca City, Oklahoma; four loads at Braman, Oklahoma, on June 20, 1948; and two loads at Jet, Oklahoma, on June 22nd. The felonious fraud relied upon is the claim of unlawful manipulation of scales in favor of the defendants when the wheat was weighed. No particular attempt was made to prove such fraud in Oklahoma where the wheat was purchased. The prosecution labored at length to prove such manipulations in Wichita where the wheat was sold,, and it appears that there is ample evidence from which proper inferences may be drawn that in the weighing of the trucks there, both loaded and empty, they were so handled that weights favorable to the defendants were indicated by the scales.
The seller of the four loads of wheat at Braman, Oklahoma, testified that the trucks were loaded' “around a foot from full” and so far as he knew all the wheat obtained there had been paid for. The scales at Braman were large enough to weigh a truck and trailer combination at the same time. They could not be handled on this type of scale as they were at Wichita. At Jet the seller said that so far as he knew all the wheat obtained there had been paid for. The only complaint made in connection with the purchases in Oklahoma was at Ponca City. There the seller described the manner of handling the trucks on the scales but his testimony created no more than a suspicion. He estimated his loss at 200 bushels. There was a discrepancy in the weights given at the port of entry when the trucks entered Kansas from Oklahoma, but as I understand from the record the trueles were not actually weighed there, at least they were not weighed empty. This is the sum and substance of the evidence as to how the wheat was obtained, and as said by Judge Huxman it is insufficient to show that wheat acquired in Oklahoma by fraudulent means and thereafter transported to Wichita was of the value of $5,000 or more.
It is, of course, true that in a conspiracy case success of the conspiracy is not essential. The gist of the offense is the unlawful agreement and some overt act to effectuate it but the $5,000 provision does not lose its significance. It must be proved by substantial evidence that the defendants conspired and agreed to transport interstate property theretofore stolen, fraudulently converted, or taken feloniously by fraud having a value of $5,000 or more. The $5,000 valuation of the property agreed to be transported is an essential element of a federal crime and a failure to prove it is fatal. Backun v. United States, 4 Cir., 112 F.2d 635, 638; Andrews v. United States, 4 Cir., 108 F.2d 511, 515; Buchanan v. United States, 8 Cir., 164 F.2d 15; Crain v. United States, 5 Cir., 148 F.2d 615, 617. It may be that the circumstances are such as to indicate an unlawful combination between these defendants to defraud some*374body but the proof of an agreement to fraudulently obtain wheat in Oklahoma of the value of $5,0Q0 or more and then transport it to Wichita is wholly lacking. The United States does not contend that there is direct evidence of the unlawful agreement. It relies upon circumstances. We know that a conspiracy is seldom proved by direct evidence and it is sufficient if the circumstances, acts and conduct of the parties are of such character to establish it. Young v. United States, 10 Cir., 168 F.2d 242, 245; Reavis v. United States, 10 Cir., 106 F.2d 982, 984; Wilder v. United States, 10 Cir., 100 F.2d 177, 182; Martin v. United States, 10 Cir., 100 F.2d 490, 495. A substantive violation may be proved in the same manner, so in this case where there is no evidence of the conspiracy except the transportation of the property the evidence must show that the property transported was of the statutory value. Under the proof here, when the substantive violation goes out the conspiracy count goes with it. Andrews v. United States, supra; Crain v. United States, supra; Buchanan v. United States, supra. To me there is no evidence of an agreement between the defendants to acquire wheat in Oklahoma by fraudulent means of the value of more than $5,000. They did purchase a total of 4730 bushels for which they paid $10,182.44 and some of the trucks were not loaded to capacity. No proof was offered as to what these trucks would hold. So far as the record shows there was no more than 4730 bushels of wheat in them when they left Oklahoma. Assuming that there is- sufficient evidence from which a legal inference may be drawn that there was a fraudulent' manipulation of the scales at Wichita, we may not infer from this inference alone that a fraud existed in connection with the purchases in Oklahoma. Rosenberg v. United States, 10 Cir., 120 F.2d 935. Even if we could so infer, we cannot combine the results of the frauds in the two states to make up the statutory valuation of the property'transported: The statute requires the value-to exist before the interstate transportation to constitute a: violation of the federal act. It is not difficult to understand why a jury would, convict in a case like this when the issue of guilt or innocence is submitted to it. The burden, however, was upon the United States to prove beyond a reasonable doubt that the defendants conspired to transport interstate property of the value of $5,000 or more which had theretofore been stolen or feloniously obtained by fraud. We should not permit a relaxation of time-honored requirements of proof in criminal cases or extend federal jurisdiction because it appears that the defendants may have been swindlers.
I think the court should have directed a verdict as to both counts.