MOBOYLE .v.

UNITED STATES 273

43 F.(2d) 273
MOBOYLE v. UNITED STATES. Appeai from the District Court of the
NO. 2l3. United States for the Western District of
Oklahoma.
Circuit Court oi Appeals, Tenth Circuit.
Aug. 18, 1930. William W. McBoyie was convicted of
violation of the National Motor Vehicle
l. Automobiles (MSM . Theft Act, and he appcais.
Statute dcñning “motor vehicie” as in- Aflirmed.
cluding automobile trucks, motorcycles, “or Harry F. Brown, of Guthrie, Oki. (Frank
any other scif-propellcd motor vehicie not Dale and Mr. Robert W. Hoyiand, both of
designed for running on rails,” includes air- Gutiirie, Oki., ou the brief), for appellant.
pianes (National Motor Vehicle Theft Act
[18 USCA § 4081). Roy St. Lewis, U. S. Atty., of Oklahoma
City, Oki. (FH-cd A. Wagoner and William
[Ed Note-For other defiuitions of i Asst. U. S. Attys., both of Okla-
Earl Wiles,
“Motor Vehicle," see Words and Phrasc
homa City, Oki., on the brief), for appcllcc.
2. Orlmlnal law wllâ. Before COTTERAL, PHILLIPS, and
Defendunt who caused another to trans- McDERMOTT, Circuit Judges.
port stoien airplane into Oklahoma could be
tried in that state, though not actually pres- PHILLIPS, Circuit Judge.
ent there (Const. art. 3, § 2, and Amend. 6; William W. McBoyle was convictcd and
National Motor Vehicle Theft Act [18 sentenccd for an allcged violation of the Na.-
USCA § 4081). ` tionzil Motor Vehicle Theft Act, section 408,
3. Orlmlnal law ®=564(l). title 18, U. S. Code (18 USCA § 408).
for transport- The indictment charged that on October 10,
Evidence in prosecution
1926, McBoyle caused to be transportcd in
ing stolen airplane warrantcd jury's find-
n, that offense interstatc commercc from Ottawa., Ill., to
ing, in support of jurisdictio
Guymon, Oki., one Waco airpiane, motor
was committed in district (Const. art. 3, § No. 256, which was the
Vehicle No. 6124, serial
2, and Amend. 6; National Motor States Aircraft Cor-
property of the United
Theft Act [18 USCA § I108]).
poration and which had theretofore been
4. Wltnesses W740). stoien', and that McBoyle then and there
Trial court has discretion to permit wit- knew it had been stolen.
ness, who has been examined as to another's The evidence of the government estab-
reputation, to be cross-examined as to par- lished the following facts: During the year
ticular charges or reports concerning that 1926, McBoyle operated a. commercial aii»
person. port at Galeria, Ill. On July 2, 1926, Mc-
Boyie hircd A. J. Lacey as an aviator for a
5. wifnésses emos. period of six months. _ In October, 1926,
Evidence as _to particular charges or re- McBoyle inducedLa/cey to go to the field of
ports concerning person whose reputation is the Aircraft Corporation at Ottawa., Ill.,
under investigation is admissihle only' to test and stcai such Waco airplaneI from the Air-
credibility of witness. ‹ craft Corporation. Lacey went to Ottawa,
6. Criminal law ©==>l I37(5). stole the airpiane, and flcw it to Galcna, ar-
riving there October 6th. McBoyle inquired
Defendant could not complain that gov-
ernment on cross-examination inquired into of Lacey if any one knew the letter had tak-
matters which his own counsei first injected
en the airplane at Ottawa. Lacey replied in
into case. the negative. Thereupon, McBoyle changed
the serial number to No. 249, and paintcd it
7. Orlmlnal law ©9402(l). over in order to conceai the alteration. Mc-
Oopies of telegram were competcut evi- Boyic and Laccy serviced the airplane and
dence where identified by addressee and supplied it with gas and oil. McBoyIc gave
where telegraph operators testified that orig~ Lacey $150 for expense money and instruct-
inais had been dcstroycd. ed Laney to fly the airplane to Amarillo,
Tex., and there lease an airport for them to
8. Grlmlnal law (Wllãöü). opcratc during the winter months. Mc-
Ruiing ou motion for new trial will not Boyle arranged with Lacey to communicntc
be disturhcci on. appeal, in absence of abuse with him en route by telegruphic code under
of discretion. Vthe name of Pat Sullivan. Laccy left Mc-
COTTERAL, Circuit Judge, dissenting. Boyids airport at Galeno., Iii., ou October
43 F. (26)-18
 274 43 FEDERAL REPORTER, 2d SERIES

6th and flew the airplane to Guymon, Okl., “(2) Thatwhich is used as the instru-
stopping en route at St. Joseph, Mo., and ment of conveyance or communication.”
Garden City, Kan. At Guymon, they com- Corpus Juris, vol. 42, p. 609, § 1, deflnes
municated with each other by telegraph and a. motor vehicle, as follows:
McBoyle instructed Lacey to sell or store
the stolen airplane and come back to Galeno.. “A Ímotor vehiele' is a vehicle operated
Th'ercupon, Laoey returned to Galena.. Mc~ bye power developed within itself and used
Boyle then gave Lacey $250 for expenscs for the'purpose of carryíng passengers or
and instructed Lacey to take an airplane of materials; and as the term is used in the
the same kind and make belonging to Mc- diifcrent statutes regulating such vehiclcs, it
Boyle back to Guymon and substitute it for is generally defined as including all vehicles
the stolen airplane. The purpose was to de- propclled by any power other than muscular
ceive the of'ficers when they found the Waco power, except traction engines, road rollers,
plane at Guymon. Laeey started back to and such motor vehioles as run only upon
Guymon with the second airplane but rails or tracks.”
crashed near Inman, Kan. Tlicreupon, La` Both the derivation and the definition of
cey returned to Galcna and continued to the word “vehicle” indicate that it is suflã-
work for McBoyle until the following De- cicntly broad to include any means or device
eember. by which persons or things are carried or
McBoe denied all of the factsincrim- transported, and it. is not limited to instru-
inating him except the scnding and reeeiving mentalities used for traveling on land, al-
of the telegrams. He testified that the tele- though the latter may be the limited or spe-
grams did not refer to the airplane but to cial meaning of the word. We do not think
liquor which Laeèy was supposed to have it would be inaccurate to say that a ship or
had in his possession in the airplane. vessel is a vehiele of commerce.
[1] The primary question is whether an An airplane is self-propelled, by means
airplane comes within the purvíew of the of a. gasoline motor. It is designed to carry
National Motor Vehicle Theft Act. This passengers and freight from place to place.
act defines the term “motor vehicle,” as fol- It runs partly on the ground but principally
lows: in the air. It furnishes a rapid means for
“The term 'motor vehicle' when used in transportation oi' persons and comparative-
this section shall include an automobile, au‹ ly light articles of freight and express. It
tomobile truck, automobile wagon, motor cy- therefore servos the same general purpose
cle, or any other self-propelled vehicle not as an automobile, automobile truck, or mo-
designed for running on rails.” torcycle. It is of the same general kind or
class as the motor vehicles specifically enu-
Counsel :for McBoyle contend that the merated in the statutory definition and,
word “vehicle” includes only conveyances therefore, construing an airplane to come
that travel on the ground; that an airplane within the general term, “any other self pro-
is not 'a vehicle but a ship; and that, under pelled vehiele,” does not offend against the
the doctrine of ejusdem generis, the phrase maxim-of ejusdem generis.
“any other self propelled vehicle” cannot be
Furthermore, some meaning must be
construed to include an airplane.
ascribed to the general phrase “any other
The Century Dictionary gives the deriva- self propelled vehicle,” which Congress wrote
tion of the word “vehícle” as follows: “F. into the act. It specifically enumerated all
Vehicule, L. Vehiculum,” meaning a “con- of the known selñpropelled vehicles de-
veyance; carriage, ship.” It defines the word signed for running on land. It used the
as “Any receptacle, or means of transport, word "automobile,” a generic term, which
in which something is carried or conveyed, includes all self-propelled motor vehioles
or traoels.” (Italics ours.) that travel on land and are used for the
It will be noted that the Latin word “ve- transportation of passengers, except those
hiculum” means a ship as well as a carriage. designed for running on rails. 42 G. J. p.
609, § 2.
Webster defines the word “vehicle” as
follows: We conclude that the phrase, “any other
sell? propclled vehiele,” includes an airplane,
“(1) That in or on which any person or a motorboat, and any
other like means of
thing is or may be carried, esp. on land, as a conveyance or transpo
rtation which is self-
coach, wagon, car, bicycle, eta; a means of propellcd, and is of the
same general class as
conveyance. an automobile and a motor-cycle.
 MOBOYLE v. UNITED STATES 275
da mas) 273
í2, 3] Counsel for McBoyle contend that the to this line of cross-examination was over-
evidence failed to establish that he commit- ruled. Counsel for McBoyle contend that
ted any crime in the Western District of Ok- such ruling was error. It is within the dis~
lahoma, and that therefore the United cretion of the trial court to permit a. witness,
States District Court for that district, be» as to reputation, to be asked upon cross-
cause of the provisions of section 2, art. 3 examination as to particular charges against
of the United States Constitntion, and the Aor reports concerning the person whose rep-
Sixth Amendment to the United States Con~l utation is under investigation. Such evi-
stitution, was without jurisdiction. dence is admissible to test the knowledge
The Motor 'Vehicle Act provides that and credibility of the witness, but not as
“whoever shall transport or cause. to be substantivo evidence against the defendant.
transported in interstate ' ' ' com- White v. State, 111 Ala. 92, 21 So. 330;
merce a motor vehicle, knowing the same to Smith v. State, 103 Ala. 57, 15 So. 866, 871;
have been stolen, shall be punished,” etc., McCrcary v. Commonwealth, 158 Ky. 612,
and that “any person violating this section 165 S. W. 981; People v. Gordan, 103 Cal.
may be punished in any district in or 568, 37 P. 534, 535. We do not think the
through which such motor vehicle has been court abuscd its discretion in the instant
transported or removed by such offender.” ' case.
The crime of transporting a stolen motor` [61 During the course of the cross-exam-
vehicle'in interstate commerce is a continu- ination of McBoyle, he was interrogated by
ing offense. It is committed in each state connsel for the government concerning mat-
and district through which such vehicle is ters that indicated he may have been con-
transported. It was not essential that Mc- nected, either directly or indireetly, with oth-
Boyle should have been physicaily present er offensesfi-a, stolen automobile, another
in the Western District of Oklahoma. The airplane stolen by Lacey, and some transac-
constitutional requirement is that the ac- tions concerning intoxicating quor. These
cused shall be tried in the state or district matters would 'have been immaterial and
where the crime is committed, but not _nec- improper but for the fact. that they were
cssarily in the state and district where the first injected into the case by counsel for
accused was at the time the crime was com~ McBoyle upon the cross-examination of Le.-
mitted. It is sufficicnt if the crime was com~ cey and in the direct examinationof Mc-
mitted in the Western District of Oklahoma Boyle. Having opened up these subjects,
and McBoyle caused it to he committed McBoyle cannot complain because counsel
there. for the government inquired concerning them
Salingcr v. Loisel, 265 U. S. 224, 235, 44 in his cross»examination of McBoyle. State
S. Ct. 519, 68 L. Ed. 989; Burton v. United v. Ritter, 288 Mo. 381, 231 S. W. 606, 608;
States, 202 U. S. 344, 387, 26 S. Ct. 688, 50 Olive v. State, 11 Neb. 1, 7 N. W. 444, 452-,
L. Ed. 1057, 6 Ann. Cas, 362; In re Pal- State v. Mott, 72 Mont. 306, 233 P. 602, 604;
liser, 136 U. S. 257, 265-268, 10 S. Gt. 1034, 40 Cyc. 2496.
34 L. Ed. 514. [7] Counsel for McBoyle contend that the
The jury was warranted in finding, from court erred in admitting, over ohjection,I cop-
the evidence, that McBoyle caused Laeey to ies of the telegrama which passed between
undertake to transport such airplane from McBoyle and Lacey while the latter was at
Ottawa, Ill., to Amarillo, Tex., that Lacey Guymon. McBoyle admitted sending and re-
started from Ottawa and succeeded in flying ceiving the telegrama and a'dmitted the cor-
as far as Guymon, Okl., and that, upon tele- rectness of some of the copies. Laccy identi-
graphic instructions from McBoyle, Lacey fied copies of the telegrams and stated that
stored the airplane at Guymon and returned they were sent and received by him. The tel-
to Galeria; and in concIuding that McBoyle egraph operator at Guymon testified that he
caused the offense to be committed- in the furnished copies of the telegrama to the
Western District of Oklahoma. United States Attorney, and that the origi-
nais had been destroyed. A sufficient foun-
H, 5] At the trial, Mathey, a witness in be-
dation was laid for the admission of the cop-
half of McBoyle, testificd as to the good rep-
ies, and the evidence was material.
utation of the latter, after stating that he
had made an investigation into McBoyle's [8] After the verdict, McBoyie filed a mo-
character. Upon cross-examination, he was tion in arrest of judgment and for a. new
asked whether or not, through such inves- trial. Counsel for McBoyle contend that the
tigfation,` he had learned of specific charges court erred in denving these motions. Mat-
Or reports concerning McBoyle. Objection ters presented by these motions were ad-
 276 43 FEDERAL- REPORTER, 2d SERIES

dresscd to the discretion of the tlial court.

application to this statute. General words
Wc have examined the record and are con- following a particular designation are usu-
vinccd that the trial court did not abuso its
ally presumed to be restricted so as to include
diseretion in denying such motions. A rui'- only things or persons of the same kind,
ing on a motion for a new trial will not be class, or nature, unless there is a clear mani-
disturbcd on app-cal, in the absence of an festation of a contrary purpose. 25 R. G. L.
abuse of discretion. Gibson v. Luther (C. C. pp. 996, 997. The general description in this
A. 8) 196 F. 203, 206; Hamilton & Sons Co. statute refere to vchicles of the same general
v. Moss-Jcllico C. Co. (C. C. A. 6) 271 F. class as those enumerated. We may assume
237, 238; Capital Traction Co. v. Sneed, 58 an airplane is a. vehicle, in being a. means of
App. D._o. 141, 26 mas) 296, 301; Detroit transportation. And it has its own motivo
United Ry. Co. v. Craven (C. O. A. 6) 13 power. But is an airplane classified gener-
F.(2a) 352. 1 ally with “an automobile, automobile truck,
The judg'ment is therefore aflirmed. automobile wagon, or motor cyclet” Are
airplancs regardod as other types of automo-
bíles and the like? A moment's reflection
COTTERAL, Circuit Judge (dissenting).
demonstrates the contrary.
I feel bound to dissent on the ground that
Counsel for appellant have referred us to
the National Motor Vehicle Theft Act should
the debates in Congress when the act was
not be construcd as relating to the transpor- pending as persuasive of an interpretation in
t-ation of airplanes. his favor; House, Gong. Rec., vol. 58, part
A prevailing rule is that a. penal statute 6, pp. 5470 to 5478; Senate, Id., vol. 58,
is to be construed strictlylagaínst an offender part 7, pp. 6433 to 6435. The proceedings
and it must state clearly the persons and acts are not permissible aids, apart from tliejour-
denounced. 25 R. ` C. L. pp. 1081-1084; nais or clommittee reports. But they may be
First Nat. Bank of Anamoose v. United referred to as showing the history of the pe-
States (C. C. A.) 206 F. 374, 46 L. R. A. riod. Standard Oil Co. v. United States, 221
(N: S.) 1139. U. S. 1, 31 S. Ct. 502, 55 L. Ed. 619, 34 L. R.
It would have been a simple matter in en- A. (N. S.) 834, Ann. Css. 19121), 734. The
acting the statute to insert, as descriptive discussions of the proposed measure are en-
words, airplanes, aircraft, or flying machines. lightening in this case from. a historic stand-
If they had been in the legislative mind, the point, in showing that the theft of automo-
language w'ould not have been expressed in biles was so prevalent over the land as to call
such uncertainty as “any other self-propelled 'for punitive restraint, but airplanes were
vehicle not designed for running on rails.” never even mentioned.
The omission to definitely mention airplanes It is familiar knowledge that the theft of
requires a construction that they were not in- automobilcs had then become a public men-
cluded. Furthermore, by excepting vehicles ace, but that airplanes had been rarely stolen
running on rails, the meaning of the act is if at ali, and it is a most uncommon thing`
clarified. These words indicate it was meant even at this date. The prevailing mischief
to be eonfined to vehicles that mn, but not on sought to be corrected is an aid in the con-
rails, and it did not extend to those that fiy. struction of a statute. 25 R. C. L. 1016.
Is it not an unreasonable view that airplanes I am constrained to hold that airplanes
fall within the description of self-propelled were not meant by the act to be emhraced in
vehicles that do notrun on rails? The quee- the designation of motor vehicles, and that
tion is its own answer. the indictment charged no oft'ense against the
The rule of ejus'dem generis has special.A defendant.