Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.
The Hites, having waived prosecution by indictment and having consented to be proceeded against by information, were charged with transporting a 1946 Cadillac sedan from Oklahoma City, in the State of Oklahoma, to Chicago, in the State of Illinois, knowing that such motor vehicle had been stolen, in violation of 18 U.S.C.A. § 408. They were convicted and sentenced and have appealed.
Ruth Hite is the mother of Ralph Hite. On November 11, 1946, Ralph Hite, using the alias, John A. Holt, purchased a 1946 Buick sedan in San Antonio, Texas. He gave back a mortgage on the Buick sedan to secure an unpaid balance of $1,662. On December 28, 1946, in Oklahoma City, the Hites, representing themselves to be mother-in-law and son-in-law, respectively, and using the aliases of Mrs. John Carr and Amos Deavers, purchased a Cadillac sedan from Seth Stone, an automobile dealer in Oklahoma City. They transferred the Buick sedan to Stone in part payment of the Cadillac sedan and Ruth Hite executed and delivered to Stone a note for $2,000, the balance of the purchase price thereof, secured by a mortgage on the Cadillac sedan. Ruth Hite represented to Stone that she owned a tourist court in Topeka, Kansas, and had money on deposit in a bank in Topeka, and displayed a bank book evidencing a deposit to her credit of several thousand dollars in such bank. On April 29, 1947, in Chicago, the Hites, representing themselves as Mrs. Margaret Holt and son, exchanged the Cadillac sedan for another other automobile.
18 U.S.C.A. § 408, provides: "Whoever shall transport or cause to be transported in interstate or foreign commerce a motor vehicle * * *, knowing the same to have been stolen, shall be punished * * *."
The precise question presented on this appeal is whether the Cadillac sedan was a stolen motor vehicle at the time the Hites transported it from Oklahoma City to Chicago. The National Motor Vehicle Theft Act does not define the term "stolen" used therein. When a Federal criminal statute uses a term known to the common law and does the define that term, the courts will apply the common-law meaning of the term, unless the context indicates a contrary intent on the part of Congress.*fn1
In the absence of a plain indication to the contrary, it will not be assumed that Congress, in enacting a Federal penal statute, intended to make its application dependent on state laws.*fn2
We conclude, therefore, that we must look to the common law to ascertain the meaning of the word "stolen."
The word "steal" in a criminal statute ordinarily imports the common-law offense of larceny.*fn3
The evidence warranted a finding that the Hites secured possession of the Cadillac sedan from Stone through fraudulent misrepresentations, but the evidence clearly established that Stone voluntarily parted with both title and possession of the automobile, not expecting it to returned to him or disposed of in accordance with his directions.
The fact that Ruth Hite gave back a mortgage on the automobile does not negative that conclusion. It is well settled in Oklahoma that a mortgage merely creates a lien on the mortgaged property and that title thereto remains in the mortgagor and he is entitled to the possession thereof.*fn4
In Loney v. United States, 10 Cir., 151 F.2d 1, 4, we said:
"One of the essential elements of larceny is that the taking be by trespass, that is, without the consent of the owner.
"Where a person intending to steal another's personal property obtains possession of it, although by or with the consent of the owner, by means of fraud or through a fraudulent trick or device, and feloniously converts it pursuant to such intent, the owner will be regarded as having retained ...