(dissenting).
It seems to me the opinion loses sight of the charge against this man, which is that of conspiracy to violate'the so-called Dyer Act (18 USCA § 408).
If it be assumed that appellant knew the car he bought was stolen, then what he did was to buy for himself a stolen ear; but there is no evidence to indicate he knew that, as a stolen car, it or any other ear had been or was intended to be transported in interstate commerce.
It is true that one may join a conspiracy after it has been formed, and need not know of all its ramifications to make him a party to it. But this does not mean that where one participates in a particular transaction he thereby becomes party to a widespread and general conspiracy of which there is no evidence he had any knowledge whatever. He must have some knowledge of a conspiracy before he is-criminally chargeable with entering it. •
If the negotiations for purchase of the car can by any stretch be expanded into a criminal conspiracy, what sort of conspiracy was it? Clearly only a conspiracy to dispose of a stolen ear, but in no sense a conspiracy on the part of appellant to steal ears and transport them in interstate commerce.
Can it be properly said that, by a reprehensible undertaking to procure at low price for his own use a stolen ear, one thereby becomes a party to a widespread conspiracy to steal cars in various states, transport them interstate, and dispose of or to receive or conceal them — a conspiracy of which it does not appear he had ever even heard? I believe this larger purpose is so far beyond the “confines” of the limited conspiracy into which he may be said to have entered (if indeed this is in any event a conspiracy) as to forbid his conviction as a party to the larger conspiracy, whereof he had not the slightest knowledge.
■ The trial surely was not of two conspiracies, and was manifestly, of the larger one only, in which evidence was received of the theft and interstate transportation of fourteen other cars than the one with which Wilkerson • was concerned — transactions with which Wilkerson had no more connection, near or remote, than had any member of this court. And yet he was tried with them upon the charge of the larger conspiracy, and went down with the rest of the company with which this prosecution aligned him.
That Earle Wilson (if not a myth) and Traugott may have been members of the general conspiracy ¿oes not of itself indicate that Wilkerson was also a member. The evidence of his dealings with them is entirely consistent with his want of knowledge that ears were to be stolen and transported interstate, or as such to be received, concealed, or stored.
The- statement in the opinion that there was evidence tending to show that Wilkerson knew the ear had been transported interstate, if having support in the evidence falls short of meeting the situation. There is still the unbridged hiatus of his want of knowledge that, as a stolen car, it or other such ears had been or were designed to be transported interstate. So far as anything to the contrary appears, Wilkerson, if knowing it to have been stolen, may have assumed that it came rightfully into Indiana, and was there stolen, in which case there was, of course, no federal liability.
The crime of conspiracy is not established by proof of the consummated criminal act, to commit which may have been its object. In United States v. Heitler (D. C.) 274 F. 401, 405, it was stated: “To establish a conspiracy to violate a certain criminal statute, the evidence must convince a jury that defendants did something other than participate in the substantive offense which is the object of the conspiracy. To illustrate, A., B., and C. may each have purchased this whisky from D., E., and P. and may have carried it from the freight ear in which it arrived, yet not have been in the conspiracy to which D., E., and P. were parties.”
In Salla v. United States, 104 F. 544, 547 (9 C. C. A.), it was said: “The defendants in this case .are not charged with the overt *659act of obstructing the passage of the mails or a carrier of the mails, but with a conspiracy. It is the confederation and conspiracy to commit an offense against the United States that they are called upon to answer for. As charged in the indictment, the conspiracy is declared to have had for its purpose to knowingly hinder and delay the movement and passage of a certain railway car and train, which ear it is subsequently alleged carried the mails of the United States. It is no offense against the United States to hinder and delay the passage of a railway car, and consequently it is no offense to conspire or confederate for that purpose. Such-an offense must be dealt with under the laws of the state. The conspiracy, as charged in the indictment, lacks an essential ingredient to an offense against the United States, to wit, that the defendants knew that the mails of the United States were carried upon the train which they conspired to obstruct.”
In Linde v. United States, 13 F.(2d) 59, 61 (8 C. C. A.), the court said: “One of the main assignments of error is that the evidence was insufficient to connect these three defendants with the conspiracy, and with knowledge that the stolen ears involved were, or were to be, transported in interstate commerce. With respect to the defendants Linde and Brown we think the point is well taken. A careful consideration of the entire record convinces us that it fails to disclose any further connection with the scheme, although the existence of such a scheme and plan is abundantly established, than the receipt of a car by each of these defendants for personal use, and without proof of knowledge of the interstate character of the transaction. There are a number of circumstances which would lead to .the suspicion that both Linde and Brown knew that the cars sold or traded to them were stolen ears, but it does not appear that they knew whence they came, or wore to come, nor that they were parties to any general plan or conspiracy having as its object the introduction of such cars from without the state for purposes of disposition and sale. That they may have had guilty knowledge and participation rests upon suspicion only, arising from their acquaintance and association with some or all of the other conspirators ; but to establish a conspiracy to violate a criminal statute the evidence must convince that the defendants did something other than participate in the substantive offense which is the object of the conspiracy. There must, in addition thereto, be proof of the unlawful agreement, and in this case, in our judgment, that proof is insufficient. United States v. Heitler et al. (D. C.) 274 F. 401; Stubbs v. United States (C. C. A. Ninth Circuit) 249 F. 571, 161 C. C. A. 497; Bell v. United States (C. C. A. Eighth Circuit) 2 F.(2d) 543.”
Dickerson v. United States, 18 F.(2d) 887 (8 C. C. A.), is to the same effect, citing the Heitler, Linde, and other cases.
The facts in the Linde Case are so strikingly like those here present that if Wilkerson were there substituted for Linde and Brown, that decision would, in my judgment, correctly dispose of this appeal.
The court below evidently had the same view of the law of such a ease in charging the jury that “you must further find, beyond a reasonable doubt, from the evidence, that the defendant, Louis A. Wilkerson, knew that the car he purchased was stolen and transported, or caused to have been transported in interstate commerce, and that he knowingly received, or concealed the car moving as, or which was a part of, or which constituted interstate commerce, knowing the same to have been stolen, and knowing the same to have been transported, or caused to have been transported in interstate commerce. Unless you find from the evidence, beyond a reasonable doubt, that Louis A. Wilkerson had such knowledge, you must return a verdict of not guilty as to him.”
In this view of the law it is not readily perceivable how the court could have let the case against Wilkerson go to the jury, or sustain the jury’s verdict.
But a conspiracy being essentially a crime of intent, proof that Wilkerson knew the car was stolen, or was transported in interstate commerce, or that he received it while it was moving in or as a part of interstate commerce, knowing it to have been stolen, do not of themselves prove a conspiracy to do these things. The crime of conspiracy to violate the Dyer Act may be completed without the theft of a single car, or any movement in interstate commerce, or receiving or concealing the ear while so moving. The gist of the offense is the unlawful combination having these things for its object, and I cannot see that Wilkerson was even remotely a party to such a project.
To have charged the conspiracy as one for stealing or receiving stolen cars knowing them to have boon stolen, would not have stated a conspiracy to violate the Dyer Act, and would not, to my mind, have conferred federal jurisdiction.
The pleader who drew the indictment evidently recognized the necessity of charging *660■as one of the essential elements of the conspiracy the knowledge and intent on the part •of the conspirators that the stolen ears would move in interstate commerce, in stating in the indictment that the conspirators “would then ■and there * * *' knowingly, willfully and feloniously transport and cause to be transported in interstate commerce certain stolen motor vehicles, to wit, automobiles, knowing the same to have been stolen, and further that they * * * would then and there and thereafter * * * unlawfully, knowingly, willfully and feloniously receive, conceal, store, barter, sell and dispose of a large number of stolen motor vehicles, * * * moving as amd which should be a part of, and ■would constitute interstate commerce, they, the said named and unknown persons, then •amd there to well know that said automobiles ■were so stolen and were moving as, and were ■a part■ of, and constituted interstate commerce.”
Practically all of the facts discussed in the opinion bear on the question as to wheth■er Wilkerson knew the ear was a stolen car, •and for the purposes hereof this is assumed; 'but they tend neither to prove that Wilkerson had knowledge that the car, after its •theft, would be or had been transported interstate, nor that he was a member of any conspiracy which had for its objeet the transgression of the Dyer Act. Upon these ■essential propositions neither these facts, nor the discussion predicated on them, in my .judgment have any relevancy.
Except as the majority opinion by necessary implication so holds, I believe it has not yet been declared to be the law that every •offense of receiving an automobile contrary to the provisions of the Dyer Act, ipso facto constitutes at the- same time also the offense of conspiracy under title 18, § 88, U. S. Code (18 USCA § 88), to violate it.
Instances may be readily imagined where ■transactions culminating in the receiving of a known stolen automobile received while in interstate commerce may implicate the. receiver in the two offenses; but where, as here, the receiver, prior to buying and receiving the ear, had no knowledge, directly or indirectly, of any plan or purpose to steal the car and transport it interstate, to my mind no ■basis for the charge of conspiracy appears.
To my mind (a) thereds no evidence that 'Wilkerson was guilty of any conspiracy; (b) ■if guilty of a conspiracy, it was not- the conspiracy on which he, with his eodefendants, was tried and convicted; (c) the judgment .should be reversed.