Earl Warren: Number 289, United States of America versus James Vernon Turley. Mr. Fisher.
Roger D. Fisher: Mr. Chief Justice, may it please the Court. This case, the United States against Turley, reaches this Court on direct appeal in the District Court for the District of Maryland. The sole issue involved is the meaning of the word “stolen” as used in the National Motor Vehicle Theft Act. In April 1956, an amended information was filed against the defendant in the District Court. There was only one count. It appears on page 4 of the record. Your Honors would -- in front of you, I think it will help get the facts very clearly in mind. The information alleged that a year ago, January 1956, James Turley did lawfully obtain a certain Ford automobile from its owner, with permission of the owner to use the automobile briefly, on that day to transport certain of their friends to the homes of the latter in Columbia, South Carolina, and to return with them. But that after so obtaining the automobile and transporting said persons to their homes, and before returning with them or delivering back the automobile to its owner, Turley, without permission of the owner, and with the intent in South Carolina to steal the automobile, did convert the same into his own use and did unlawfully transport it in interstate commerce from South Carolina to Baltimore, Maryland, knowing it to have been stolen, where he did on the next day, sell the automobile without permission of the owner. The statute involved is even shorter. It's one sentence. It appears on page 2 of the Government's brief, “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 $5000 or imprisoned not more than five years or both.” The defendant moved to dismiss the information on the ground that it did not state an offense against the United States. The District Court construed the word “stolen” in the statute as applying only to those motor vehicles which had been acquired in such a way that their acquisition would have constituted the offense of larceny as understood at common law. The District Court then found that the circumstances here involved would not have involved the offense of larceny as understood at common law and dismissed the information.
Speaker: This was all before any evidence was taken out --
Roger D. Fisher: That's right. The -- the whole --
Speaker: -- completely.
Roger D. Fisher: -- case comes up to you on the information and its dismissal. The United States agrees that under the circumstances of this case, the -- the conduct be -- would not have constituted the offense of larceny at common law. So, the sole issue is one of statutory construction as to whether the word “stolen”, as used in this Act, is limited to those stolen vehicles and limited to those vehicles that require in a manner which would have constituted common-law larceny or whether “stolen” has the more common everyday meaning of a stolen car, a hot car is used, generally understood in the contemporary community. The Government's position in the word “stolen” is used in the general accepted -- generally accepted meaning of having been taken from one's own use without right and with the intent to deprive the owner of it. We -- more technically, we think that stolen vehicles are those taken by any of the theft crimes, namely, larceny, larceny by trick, false pretenses or embezzlement. We do not think the word should be construed that a stolen vehicle should be analogized to a verb stealing, take one -- taken by stealing that stealing necessarily means larceny, that larceny means larceny as defined at common law for there were statutory crimes, embezzlement and so forth. The appellee's position here is basically that criminal statute must be construed narrowly, that as between the two meanings that might be given to stolen, the common-law definition is narrower and he suggest more definite. He concludes that under the statute, no vehicle could be considered a stolen vehicle but the circumstances in which were acquired would have constituted larceny as understood at common law. The -- there is no definition of stolen in the statute. The legislative history is not decisive. We get some help from it, but I will touch on that in a moment.
Speaker: Is that a split in the circuits?
Roger D. Fisher: That's what I'm just going to say. There are -- this -- this matter is one that comes up frequently. There are three Circuit Courts of Appeal that had decided. The Fourth, Sixth and Ninth had decided that larceny -- that stolen vehicles are not limited, those taken by common-law larceny. The Second Circuit has dictum to the same effect.
Felix Frankfurter: Out of what committee did this statute come, judiciary?
Roger D. Fisher: It came out of judiciary.
Felix Frankfurter: It consists of lawyers, doesn't it?
Roger D. Fisher: It -- it consists of some lawyers, I'm sure --
Felix Frankfurter: Well, I (Voice Overlap) --
Roger D. Fisher: -- at the time it did. I'm not -- I have not checked the -- who the -- who the Committee was at the time. In -- the statute was adopted in 1919 and there was some discussion at that time of the problem, the insurance rates on stolen vehicles that are going up. Mr. Dyer's made a report to the House Committee on the extent of vehicles that were stolen. One of our points on legislative history is that the table of -- of -- given to the figures included in the Committee Report for stolen vehicles from 21 so cities, indicating some 20,000 cars have been stolen. That those figures, the best we can ascertain would have included vehicles obtained by any theft crime as reported by stolen. The FBI is -- knows of no jurisdiction which now or anytime as reported stolen vehicles only limited that class taken by common-law larceny. The -- the figures before --
Felix Frankfurter: (Voice Overlap) --
Roger D. Fisher: -- them were dealing -- Your Honor?
Felix Frankfurter: The FBI record is now part of legislative history.
Roger D. Fisher: The -- the record --
Felix Frankfurter: The record would give us the legislative history, even the FBI reports.
Roger D. Fisher: The figures -- the legislative history contains the -- the figures on the number of cars stolen in these cities, yes, sir. Your Honor, the report of -- the report which -- parts of which are referred to in both briefs is Rep. No. 312, 66th Cong. , 1st Sess. That --
Felix Frankfurter: You're stating the legislative report that bears explicit on the meaning of a phrase that has a lawyer's meaning reported by a lawyer's committee without any definition that is to be taken by a non-lawyer committee.
Roger D. Fisher: The one discussion by lawyers of the language of the bill occurred on the Senate floor, where the -- there was language in the statute. The statute originally read -- the succeeding section, which also has the word “stolen” in it, originally read that “Whoever shall, with the intent to deprive the owner of the possession thereof, receive, conceal, store, barter, sell or dispose of any motor vehicle moving as, or which the part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen.” This phrase “with the intent to deprive the owner of the possession thereof” was deleted by the Senate and remained out of the bill. The only language discussing it -- that's -- at all useful is that which appears on page 13 of the Government's brief, where Senator Nelson, who was not the Senator who proposed the deletion but -- explained -- he's the only one who really commented on the problem, says that the Senator -- it's on page 13 of the Government's brief, the Senator from Iowa allowed me a desire to say to examine the authorities upon one of the elements of the offense of stealing is a deprivation of the owner of the things stolen without his consent. The words referred to by the Senator from Connecticut do no harm, though they are really surplusage. Their meaning is implied in the word “theft” or in the “stealing”. If the Senator will look at the textbooks, he'll find that a part of the element of the offense to deprive the owner thereof without his consent. The statute as it was then being considered had the intent to deprive the owner taking place at the time that the automobile was to be received, concealed, stored, bartered or sold, disposed of. The intent was -- was specifically to take care the intent to deprive the owner to use referred to at that time. The fact that it was considered to be surplusage indicates that they understood that theft will include depriving the owner, dishonestly, this property, whether the intent occurred at the time the automobile was originally acquired or whether the intent occurred at the time it was disposed of. I don't think that we can make too much of this. I only think -- I don't think I can say -- say this is controlling, but it seems to me that this is the only legislative history we have aside from the fact that figures were used for stolen cars, which there is no reason to believe we're limited to cars taken by larceny --
Felix Frankfurter: I have taken (Voice Overlap) --
Roger D. Fisher: -- by common-law.
Felix Frankfurter: -- suggest that looking at the textbooks, they meant textbooks are under criminal law. Did you --
Roger D. Fisher: And --
Felix Frankfurter: -- did you (Inaudible) meant textbooks under criminal law?
Roger D. Fisher: I think so, and I think that there are a number of --
Felix Frankfurter: And he get -- go to those to get into trouble.
Roger D. Fisher: The word “stolen” has a long history and has never been used until recently as the same as technical common-law larceny. It has been used by non-lawyers and by others from way back, including the sense of embezzlement. I -- I went through the --
Harold Burton: Was there ever such a common-law crime of stealing?
Roger D. Fisher: No, there was never a common-law crime of stealing in our common law. The crime of larceny was expanded by judicial decision from that constituting a trespass at the time to where you could assume a trespass, where there was a -- a fraud. You acquired the possession by fraud, and they said constructed trespass where a servant had the property, and they said, “Well, they had custody and not possession and therefore, there was a trespass when he changed from custody to possession.” And right on the breaking of the bulk cases, where a man takes a barrel of wine and he opens the barrel, they say, “Well, although the barrel was given to him rightfully, it's not embezzlement. It's a -- it's larceny because he committed the wrongful act in opening the barrel.” The -- the crime of larceny was expanded steadily by judicial decision until various embezzlement statutes, and the -- the reason it has never got beyond where it got 100 years ago is that most States, at least in this country, completely have made these crimes dealt by statute. And in many States, larceny by statute is expanded to include the offenses that we're talking about here.
Felix Frankfurter: In -- in that type of legislation, there is usually a definition, an increasing definition --
Roger D. Fisher: That's right.
Felix Frankfurter: -- about deprivation of property may be prosecuted as for larceny, am I right?
Roger D. Fisher: It's done a number of ways, Your Honor. That's a frequent way to say this will constitute --
Felix Frankfurter: Yes.
Roger D. Fisher: -- larceny. In other way, they say --
Felix Frankfurter: That is done in order to avoid implication, the natural or reasonable implication if the common law concept survived if you don't change it by statute so as to make it as (Inaudible)
Roger D. Fisher: The -- the -- I would like to say that while the common law was developing, the word “stolen” was not -- it was being used in the earliest days. Oxford Dictionary traced it back to 1380 and earlier where stolen is used. In -- in the 15th century, there are two cases, instance that they give and examples of the use of the word and it would include what we would call embezzlement. The example given where in the -- where they're referring to Gospel of St. John where Judas bear the person stole that which was given to Christ, 12th Chapter in John, where there -- this is a discussion commentary in the 15th century. In the -- 1640, other reference to it that the -- by the Protestants and the church were fighting that the church is merely -- the wealth of the church is -- is stolen wealth, clearly not taken, not any idea. This was taken by common-law larceny. The word “stolen” has had two meanings. I appeal to Justice Frankfurter that one meaning is the narrow technical one of common-law larceny.
Harold Burton: Can you suggest any reason why that Congress would be interested in making the crime to transport a motor vehicle that was taken by larceny across the state line but not one that's taken by embezzlement?
Roger D. Fisher: I can suggest none. Appellee suggests --
Felix Frankfurter: It was a very good one.
Roger D. Fisher: -- two reasons. One is that the concept of larceny is more clear-cut and they wanted the statute to be definite. And the other is that it's narrower and that you shouldn't presume between choice to -- to the broader.
Harold Burton: The (Voice Overlap) -- was trying to help out the States here on this transportation across the interstate line. They're trying to help out embezzlement as much as larceny would.
Roger D. Fisher: We think so. We think that the -- if you consider the purpose of the statute, which was automobiles are kind of property that can quickly move from one state to another. That there is no way of catching the thief without elaborate extradition, unless the Federal Government can step in, use its facilities to get from one state to the other to find out where the car is in the traffic. Currently --
Felix Frankfurter: Do these figures -- do these figures of the FBI indicate a relative proportion of outright theft of cars and subsequent appropriation of cars properly in the possession of a -- of a driver?
Roger D. Fisher: No, we -- we have -- the only --
Felix Frankfurter: The car (Voice Overlap) --
Roger D. Fisher: -- simply right on that. The reason we do not is the uniform crime reporting system adopted by all the States in 1930 has -- has for all its crimes. They have theft crimes. They have embezzlement crimes then they may have auto theft.
Felix Frankfurter: But they don't mean --
Roger D. Fisher: And auto theft is dealing with the entire merged offense, the frequent --
Felix Frankfurter: But that's a bad -- that's a bad reason for giving us or assuming that Congress introduced language in making federal offenses or status quo whether the -- well within the domain of the State. It's not a very good immunity, it's not one of the things to meet. The whole point about them, about making things crime is that it should be specific with the law as the English language more or less permits.
Roger D. Fisher: The --
Felix Frankfurter: The whole of the dialect was a considerable angle upon state exclusiveness. It was not without authorization and it was not without considerable concern that you should not take these things over from state prosecutions. So, they're very good in this. Why do you want to give it a restrictive meaning?
Roger D. Fisher: The -- the policy behind strict construction of criminal statutes to relieve innocent -- where you're drawing a boundary between innocent conduct and criminal conduct. I think that somewhat last year, we were drawing the line between criminal conduct, which is already criminal to be punished by the States, the Federal Government part of it or should the Federal Government help the States enforcing the additional element that we're here discussing, here involved.
William J. Brennan, Jr.: Well, tell me Mr. Fisher, this indictment says that this accused was loaned the automobile to take certain people to their homes in Columbia, South Carolina and that he -- after with -- after having done that, he converted the car. Now, I gather for this statute to be applicable at all, the Government has to prove a theft in South Carolina, doesn't it?
Roger D. Fisher: The intent with the inaccurate information goes on to say and with the intent to steal in South Carolina, converted the same to his own use and drove up to Baltimore.
William J. Brennan, Jr.: Yes, but where -- where -- how's the Government going to prove? And I think this bearer is out of the construction of the statute, really. How do you prove a theft in South Carolina under circumstances in which has alleged, he was loaned the car for use within Columbia, South Carolina? Now, what point in South Carolina do you establish there was a theft in South Carolina following which he had transported the car, knowing it was stolen across the state line?
Roger D. Fisher: The precise point where the theft occurred on his route from the friend's house to Baltimore, I don't think we have to establish --
William J. Brennan, Jr.: Well, you can't --
Roger D. Fisher: It took place in --
William J. Brennan, Jr.: -- you have -- it has to. You have to establish it --
Roger D. Fisher: -- in South Carolina.
William J. Brennan, Jr.: -- in South Carolina.
Roger D. Fisher: His intent in South Carolina is to call the car briefly to return it back in South -- in Columbia, where they met to and he then, instead of returning the car to the owner, he drove up to -- to --
William J. Brennan, Jr.: Well, it's not going to help you --
Roger D. Fisher: -- Baltimore.
William J. Brennan, Jr.: -- you need to prove he rode from the border of South Carolina to Baltimore, unless you also establish that he'd stolen the car before he came to the border.
Roger D. Fisher: Well -- or -- or in the next state. He still has --
Felix Frankfurter: Oh, no. Why -- why can he do that?
Roger D. Fisher: The --
Felix Frankfurter: I mean that if a man instantly borrows a car. He secures an (Inaudible) drives to State one then driving into another State and then he finds the car there, trying to say, “I think I'll keep it.”
Roger D. Fisher: And --
Felix Frankfurter: Is that the new statute?
Roger D. Fisher: And then drives from that State up to Maryland and sells it, then it falls in the statute.
Felix Frankfurter: Well, suppose he doesn't in the State of Maryland?
Roger D. Fisher: No, I'm not -- the State -- he drove from South. My geography may be brief but I believe from South Carolina to Maryland, you do have to go through one other State.
Felix Frankfurter: But he doesn't -- he doesn't make up his mind to retain it permanently until he gets to Maryland. Is that the new statute?
Roger D. Fisher: No. Not as really the statute, no.
William J. Brennan, Jr.: I don't think --
Roger D. Fisher: The problem I'd like to speak. For the purposes of this case, Justice Brennan, where we have in effect stipulated the -- the information was drafted between the Government and counsel to state the fact as to when his intent took place in South Carolina and there he started -- from there, he started driving north.
William J. Brennan, Jr.: Yes. This -- this charges him with having stolen it because it then goes on to allege that he had convert the same to his own use and then unlawfully transport it from Columbia, South Carolina to Baltimore. So, you (Voice Overlap) --
Roger D. Fisher: In -- in Columbia, South Carolina we say he embezzled the car, which we say is stealing under this --
William J. Brennan, Jr.: How do you prove that? That's my --
Roger D. Fisher: -- statute. I would like to get right to that point because, well, on this case, it is said that it's stolen there. This will be -- a statute will be impossible to administer construed as three circuits have construed it and not as the other three have construed it. Take two cases, current types of cases, both of which have been litigated. Take the Turley case right here. If the federal statute is limited to common-law larceny, the state authorities will not know what is the federal offense in which they can call in the FBI to help get them on it or not. Unless they can figure out what -- whether Turley deceived his friend when he borrowed the car or whether he would change his mind later because if he got the car by fraud, it will be larceny by trick then the possession will fall in the common-law definition. He changed his mind a block later. He decided to go up to the car then it would be embezzlement. The statute would not cover it. So, the line between state and federal help on acquiring cars would turn on someone's guessing what Mr. Turley's mind was like at the moment he said, “I'll borrow your car and I'll drive his friends to their houses.” Now, we have stipulated here to raise the issue which has come up now in seven -- six circuits. We want a decision on it that his -- he borrowed it honestly and he then changed his mind, embezzled. But if the construction --
William J. Brennan, Jr.: Well, in fact then, that worries me.
Speaker: How would you think the FBI would resolve that ambiguity in any case that they thought was important?
Roger D. Fisher: Well, you've got a -- a difficult problem of the -- I think they would operate the way they've been operating since those decisions but the -- they've been assuming that they haven't. But the same case takes place when you have a rented car, same problem whether he -- when he rented the car and he acquired possession by trick, finding to go off with it or whether he acquired possession, changed his mind later. In more frequent cases, the installment purchase of a car, here, if he gives a bad check on an installment purchase, buy the new automobile and gives the down payment with a bad check intending to -- to fraud. If you're in a state where the seller's interest is a title interest, the seller keeps the title. He only gives possession then you've got a case where it will fall under larceny by trick because he only gave up possession. If you have a state where the more -- the seller's interest is a land and he intended the title to pass, you will find that this is a false pretenses, and not common-law larceny, and not covered. Now, in the Hite case, which in 1948, 29 years after the statute was passed for the first case to hold that “stolen” was not the definition we urge for but was limited to common-law larceny. In that very case, the Hite case in the Tenth Circuit, the Court looked to the Oklahoma mortgage statute on automobiles in order to find out whether the seller had intended title to pass or had intended to keep the title, which would have made it or not a common-law larceny offense. I might say that following that decision, people who had been convicted and plead guilty to having stolen a car before are then brought 2255 actions and were released on the ground they thought they'd stolen the car. Their lawyer thought they'd stolen a car. I wouldn't thought they'd stolen a car, but the Tenth Circuit now held that this was not a stolen car and so people who were serving time were then released on the misconstruction of the statute. That is the reason another point on two other briefly touched on construing --
Hugo L. Black: May I suggest up to this point. You're -- you're -- what you're arguing here is when you say that's what you won't decide. Your complaint charges what everyone would admit was embezzlement, doesn't it?
Roger D. Fisher: At common-law.
Hugo L. Black: Well -- well, that's one of your general meaning of it, but what if he had stolen the car --
Roger D. Fisher: Right.
Hugo L. Black: -- it certainly means embezzlement.
Roger D. Fisher: Right, that's right.
Hugo L. Black: And you say that we should construe the statute which says stolen as including that embezzlement. That's further.
Roger D. Fisher: That's basically our position, that the word "stolen vehicle," whether the verb to steal is used only as to larceny, I think there's a slight difference. But when you get to past participle of stolen, the status of the car, this statute only deals -- and I think that's why they -- the statute that's been passed only said stolen, because it only deals -- it doesn't deal of the taking of the car the way the statutes -- stealing Government property is going to embezzlement or other languages. This deals with the status of a vehicle that has been dishonestly moved by intent to deprive the owner of it and move to another State. It's a -- it's a stolen car. If -- if -- I have a hard time explaining the principle of this case is going to about. They said they're stolen cars. They aren't stolen cars because in 18th century, trespass would lie on the original taking --
Hugo L. Black: That might not --
Roger D. Fisher: -- concept --
Hugo L. Black: -- that might not be inviting. It might be that -- that someone would say, “Well, it just doesn't mean embezzlement without knowing the meaning.”
Roger D. Fisher: Right. You could -- I'm -- I'm -- I'd like to suggest the two reasons. One is the --
Hugo L. Black: Are there many cases outstanding? Many cases that --
Roger D. Fisher: The -- this particular kind, false pretenses and embezzlement, is where they included in the statute. It's now been decided by six Circuit Courts and is a frequent cause of study. It comes up fairly often.
Felix Frankfurter: How many -- how many -- do you happen to have plenty at hand the number of prosecutions of the Dyer Act?
Roger D. Fisher: The direct convictions, about 90% convictions were obtained on -- on -- convictions were about 15,000 convictions. Oh, excuse me, 5000 convictions, 15,000 interstate transportation of stolen vehicles were -- were recovered by the FBI. You don't know how many are interstate until you get the car back because they report a car as being stolen, so about 15,000 interstate stolen vehicles recovered, 5000 -- about 4700 convictions were obtained. It's five times as many convictions obtained under this statute as per any other offense of which the FBI has presented.
Speaker: Are there any figures the FBI figured as to the amount of number of cars that are transported in interstate commerce by so-called offenses, people who receives them as stolen cars who don't do the stealing themselves?
Roger D. Fisher: I have not got the figures. There -- maybe they do not have the --
Felix Frankfurter: The statute looks to offenses mostly knowing --
Roger D. Fisher: Knowing to have been stolen. Let's --
Felix Frankfurter: That's -- that's what they --
Roger D. Fisher: The -- the basis -- the one reason the FBI was concerned about this matter is that the interstate transportation of automobiles, the one of the key ways in which gang rings are caught. The Dillinger gang and others, they steal cars to stay in business and this is the way the federal officials get control over this.
William J. Brennan, Jr.: Yes --
Roger D. Fisher: We think --
William J. Brennan, Jr.: But Mr. Fisher, these -- certainly, the number of convictions or prosecutions based on circumstances such as alleged here, where there was a bona fide borrowing of the automobile isn't the kind of thing that those figures looks like, is it? Isn't it usually where perhaps possession is gained by trick, where actually it may establish larceny by trick? Isn't that the more usual situation (Voice Overlap) --
Roger D. Fisher: Right. The most -- the most single most usual situation is the acts of larceny of taking a car off the street.
William J. Brennan, Jr.: Yes.
Roger D. Fisher: The -- I would guess next, I don't know. But I guess from what I happen to do know that next the most common would be the bad check acquisition of a -- of a car or --
William J. Brennan, Jr.: Well, that's larceny by trick.
Roger D. Fisher: -- or -- yes or -- well, it is -- if the State has a mortgage or has title interest where the title goes across, if the seller reserves the title --
William J. Brennan, Jr.: Of most of them these days?
Roger D. Fisher: They are both crimes. Still on -- on --
William J. Brennan, Jr.: But --
Roger D. Fisher: -- on conditional sales of the automobile.
William J. Brennan, Jr.: Yes. In this situation, usually, the prank thing of some youngster borrowing a car and then bringing it home?
Roger D. Fisher: No, the -- no. Most -- they do not count -- among the 225,000 auto thefts last year, a quarter of a million cars reported as auto theft, 90% of which were --were recovered. Those figures do not include cars returned or cars whether it appears to be that the crime reporting manual on how to report crimes don't report it unless there's an intent to steal the car, I mean, to deprive the owner of it.
William J. Brennan, Jr.: Well, that is at the time that you get the car from the owner.
Roger D. Fisher: No, this is not -- do not include cases where use of a car is -- show for someone with lawful possession and uses the car illegally, that's not --
William J. Brennan, Jr.: In a case on a frolic in his own service.
Roger D. Fisher: Yes, show for it going on.
William J. Brennan, Jr.: That's what -- that's what this indictment is, isn't it?
Roger D. Fisher: No, he sold the car when he got it.
William J. Brennan, Jr.: Well, I appreciate that but I mean the -- in its origin. He apparently was loaned the automobile and then he just --
Roger D. Fisher: That's right. This is -- if --
William J. Brennan, Jr.: (Voice Overlap) --
Roger D. Fisher: There are number of these cases. There are three or four among the cases referred to in the briefs or just this -- this thing happened. I'll save the balance -- moment of my time.
Earl Warren: Mr. Martin.
Fenton L. Martin: Mr. Chief Justice, may it please the Court. The Government, which is the Dyer Act to cover all kinds of misappropriations of vehicles which are transported across state lines, the Government has asked on a number of occasions that Congress amend the Dyer Act to say specifically what the Government is contending for here today. They are bound successful in the attempt to secure congressional amendment and so --
William J. Brennan, Jr.: What's the form of the amendment, do you know?
Fenton L. Martin: It is referred to Your Honor, in the Government's brief on page -- pages 14 and 15. They have asked that the Act be broadened so that it covers such language as embezzle, feloniously converted or feloniously taken by fraud. Those amendments have failed the passage. So today, the Government is here asking this Court to declare that the Dyer Act is meant all along what Congress has failed to amend it to mean. The only real argument advanced by the Government in support of its position is the fact that Congress would have no reason to differentiate between these various types of takings of automobiles when Congress passed the statute. I think that there are reasons for such differentiation. First, I think that we should bear in mind the time when this statute was passed. The statute was passed in 1919. At that time, the constitutionality of the Act itself was in doubt. There was some discussion as to whether the Interstate Commerce Clause was adequate to cover the transportation that the Dyer Act sought to prohibit. That question was finally resolved by this Court in the Brooks case in 267 United States. I would like, if I might, to read one sentence from the Brooks opinion. This Court said, “Elaborately organized conspiracies for the theft of automobiles and spiriting them away into some other State and their sale or other disposition far away from the owner and his neighborhood have roused Congress to devise some method for defeating the success of the widely spread schemes of larceny.”
Stanley Reed: What was the title of the case?
Fenton L. Martin: That, Your Honor, is Brooks versus United States in 267 United States.
Stanley Reed: It's not cited in your brief.
Fenton L. Martin: No, Your Honor, it is not cited.
Hugo L. Black: What are you going to say? Excuse me. Before we ask you one section, you know about the reference you made to the Government's brief as a report from the Senate Committee, partially quoted, showing if there's a favorable report of the bill to include embezzlement and --
Fenton L. Martin: Yes.
Hugo L. Black: -- not said that word to the Act. Was that bill voted on in the House if you know or did it just die without being voted on?
Fenton L. Martin: I believe that it died. I could find no reference to this having been voted on.
Hugo L. Black: Was there any report in the Senate that you know?
Fenton L. Martin: I don't believe so, but I'm not positive, Your Honor.
Hugo L. Black: I thought that the House -- is this a House Bill? So, that's a Senate Report, Senate Report.
Fenton L. Martin: Oh, it's a Senate Report, yes sir.
Hugo L. Black: And there are some House Reports referred to also.
Fenton L. Martin: I believe that the --
Hugo L. Black: You think it was (Voice Overlap) --
Fenton L. Martin: There were several amendments offered since 1948 after the Hite decision. None of those were successful. As far as I know, none of them were rather voted on by the House of Congress.
Speaker: I missed the significance of that quotation you read in the Brooks case.
Fenton L. Martin: The significance I think, Your Honor, is that this Court when it was first placed with the Dyer Act, it felt that the Dyer Act was aimed at organized conspiracies of thieves who had “schemes of larceny” to take cars across state lines and sell them, the point being that these organized groups of thieves operate in ways which are traditionally within the framework of common-law larceny. This Court so thought, the lower court in this case so thought, and it was admitted by the Ninth Circuit Court of Appeals that this was the situation which primarily motivated the Congress when they passed the Dyer Act. I'm referring now to Smith versus United States, one of the cases giving a broad construction to the Dyer Act, withholding that they must admit that typically an unattended car is taken and that this is the traditional form of common-law larceny. I think then that it is not unreasonable to suspect that Congress did not have in mind all of the various ramification of wrongful taking at the time that this Act was passed. Congress was acting or reacting to a need. There was a clearly felt need and the conscious action of the Congress was directed toward common-law larceny. Now, there are other indications of that fact which I feel in all frankness are not determined, given in anyway of the issues in this case. For example, the title of the Act, the Motor Vehicle Theft Act. The Government argues in its brief that the word "theft" is broader than common-law larceny, and it cites Bouvier's Law Dictionary for that proposition. I feel that the word "theft" is a synonym for larceny. It was soused by Blackstone. Other cases have indicated that the word “theft” is a synonym for larceny as understood at common law. There's the matter of Senator Nelson's statement about the textbooks. That was a statement made during the course of debate and perhaps is not entitled of great significance, but surely it must refer to common-law larceny and to treat as is that so define common-law larceny. Now, in view of the fact that the legislative history of the Dyer Act is not itself conclusive, comes in paramount importance, I think to consider the word that Congress used in the Act itself, the word “stolen” and the meaning of the word “stolen”. In this regard, we have I think the help of a number of set of rules of statutory construction. It should be presumed that Congress understood when it used the word “stolen” in the Dyer Act, that a common-law term which is used in a criminal statute and is not otherwise defined by the text takes its common law meaning. Now, I have cited in the brief a number of decisions of state courts holding most emphatically that the word "steal" is synonymous with the word “larceny” as understood at common law. Now, it is true that the word “larceny” is not often defined by use of the word “steal”. It is, however, also true that the word “larceny” in its traditional definition is also -- or that the traditional definition given to the word “larceny” at common law is also the traditional definition of the word “steal”. Now, there are other definitions of the word “steal” over and above broader than the common-law larceny. But in all of the dictionaries, I think, the definition which coincides with common-law larceny is the primary meaning given. The other meanings are given as second and additional meanings as Funk and Wagnalls says in definition too loosely to acquire by other means than stealing -- than larceny. I think we must presume that Congress intended to use the word in its primary and most important and well-understood sense, rather than in a loose and largely undefined sense when it passed the Dyer Act. I think Congress must be presumed to understand that criminal statutes are traditionally strictly construed and that clear and unequivocal language must be in an Act before it will be extended by court to cover other offenses not clearly within the meaning of the words used. Now, I think also with respect to the matter of purpose of the Act, that the history of the Dyer Act in connection with the National Stolen Property Act and the National Stolen Cattle Act is important. The Dyer Act was passed in 1919. It uses only the word “stolen”. It is the contention of the appellee. Of course, the word “stolen” refers to the traditional kind of common-law larceny. And when in 1934, the National Stolen Property Act sections were passed relating to securities and money transported across state lines or the receipt of securities and money which were transported across state lines, that Act used other -- an additional words to the word “stolen”, which clearly indicated an intention to broaden the scope of the -- meaning of the Act. The reason I think is that securities and moneys are more traditionally subject to taking by embezzlement than would be an automobile. When later in 1941 the National Cattle Theft Act was passed, again, the Congress reverted to the use of the word "stolen" alone. That Act also says simply knowing the same to have been stolen. Can we not see that the reason for that is that cattle are traditionally stolen in a sense of taking which would be common-law larceny? It is not often I think that cattle are embezzled. Congress felt no need to extend the scope of the statute beyond the common-law larceny type of situation. When Title XVIII of U.S.C. was codified in 1948, all of the sections were adopted and put under one heading, but they all retained their own words as they had before. So, with the Dyer Act stole -- says "stolen”, the Act relating to securities and money contains additional phraseology and the Cattle Act also says "stolen".
William J. Brennan, Jr.: Well, in general, the state statutes and many criminal statutes going way back among the States are there that use the word “stolen?”
Fenton L. Martin: I think there are, Your Honor, a great many.
William J. Brennan, Jr.: And what -- what has usually been the interpretation under those statutes?
Fenton L. Martin: Well, a number of those cases are cited. The language from them I should say is cited in the appellee's brief, beginning on page 7 and continuing through page 11. Those cases have -- in the vast majority of instances held that the word "steal" or "stolen” means common-law larceny. In fact, the Courts have been most emphatic about it. The North Dakota court quoted on page 7, said that “steal” was a word of art imposing -- importing a common-law larceny.
Earl Warren: Mr. Martin, in some States like my own, California, they have abolished all distinction between the various forms of larceny. And now, whether a man steals an automobile by -- by plain theft, or by embezzlement, false pretenses, or by trick and device to just charge him with -- with theft and that he stole an automobile, from (a) stolen automobile, from (b) and that's theft. And I don't know how many States have that but wouldn't that bear upon -- perhaps upon -- but why not --
Fenton L. Martin: I am not aware of the wording of the California statutes, Your Honor, but --
Earl Warren: I don't know how many other States have that. Maybe our State is the only one that does have when we (Voice Overlap) --
Fenton L. Martin: The purposes have no bearing --
Earl Warren: -- for great many years, at least 30 years to my knowledge.
Fenton L. Martin: In Virginia, they now have a statute which is that comprehensive but the prosecuting attorney --
Felix Frankfurter: Extensively, that statute is not uncommon because --
Fenton L. Martin: Yes, Your Honor, but maybe, I have no figures on it. I do know that not all States have such statute.
Felix Frankfurter: Have you -- have you examined other statutes of the United States in which Congress has not done what California is supposed to maintain in respect to the judge, but has adhered to the decisions being larceny and embezzlement. Receiving stolen property within margin and territorial provisions, talked about whether those laws, they see that the legal was good back on which may be the subject of larceny that has been promoted, taken, stolen, or embezzlement, and several statutes in which Congress has passed it around and generalizes the problem.
Fenton L. Martin: A great many of those, Your Honor, page 11 of my brief, Footnote 16. I would ask by -- by glancing at it now about 10 to 15 such statutes. The language --
Felix Frankfurter: Federal, I'm talking about federal --
Fenton L. Martin: Federal, Your Honor. They are in the -- in Title XVIII, Section 641, 655, 656 and --
Felix Frankfurter: And -- and --
Fenton L. Martin: I think --
Felix Frankfurter: -- they revised it when they got around to revise it. He's talking about simplifying and taking out devious words and combining, left only differentiations on construing this.
Fenton L. Martin: Yes, Your Honor, they did. I think that Congress had many words at its disposal, had it wished the Dyer Act to cover other than common-law larceny. Now, I would like to make it quite clear that I'm not saying that the word "stolen" cannot mean something broader than common-law larceny or that it cannot mean something broader than common-law larceny in the criminal statute. The point is that if the word is otherwise undefined, it takes the meaning of common-law larceny. The Courts that have held adverse to my position here have quoted liberally from Crabb versus Zerbst and from United States versus Stone, cited in my brief on page 19 and on page 20. Those cases are often cited as authority for the fact that the word "stolen" has a broader meaning than that of common-law larceny. But in those cases and in each of the other cases cited by the Government, the statute was broader in its own language than is the Dyer Act. That was pointed out quite clearly by Judge Hammond in the United States versus Stone case, when he said that “in spite of the fact that the word "stolen" can mean more than common-law larceny, I would hold it here to mean only common-law larceny,” and this case involve stealing goods from a wreck within the maritime jurisdiction, were it not for the fact with the word "stolen" in that statute was joined with the words “plunder” and “destroy,” and the use of those additional words show the clear congressional intent to encompass the whole field of taking from the vessel. But absent such additional words, Judge Hammond said that he would be constrained to hold that statute applicable only to common-law larceny. And that is the distinguishing point in all of these cases that the Fourth, Sixth and Ninth Circuits have relied upon in holding the Dyer Act to have a broad meaning. I think it's important to consider also what the Dyer Act means if it does not mean common-law larceny. A lot of loose language has been used in giving meaning to the Dyer Act in the broader sense. The traditional definition used by the Fourth, Sixth and Ninth Circuits is that it covers any misappropriation without right or law. Other expressions have been to any wrongful taking, any dishonest taking, any unlawful taking and so forth. Now, it is our position that if the Act were so broadly construed, it would be vague and indefinite to the extent that a constitutional issue might arise. And that the Court in considering what Congress met when it passed the Dyer Act should consider that Congress would have desired to avoid any conceivable constitutional issue in using the word “stolen.” And that leads us again to the belief that the word means common-law larceny alone.
Earl Warren: Mr. --
Roger D. Fisher: I have a minute or two left. Mr. Justice Black, on the amendments to this Act, none of them were voted down. Two of the various amendments proposed passed different Houses but died in the rush of business. Most of them included other minor changes in the Act, including adding tractors and things of that kind, although, a couple were limited to adding the word "embezzlement". I'd like to cover the other federal statutes so we can see that most times in most of the theft crimes, Congress has added a spring of words together. There are, however, cases such as in 18 U.S.C. 1710, whoever being a post master or postal service employee takes or steals any newspaper packets from the post office --
Hugo L. Black: Take or steal?
Roger D. Fisher: Steals, any --
Hugo L. Black: Did you say take (Voice Overlap) --
Roger D. Fisher: Takes or steals any newspaper or packets of newspapers from the post office. Now, under common law definition, you would -- a post master would hardly be stealing things from the embezzlement of materials in the post office service. The vagueness point we think is unimportant. The administrative point or the difficulty of administrating a statute which has a hard time deciding whether it is a federal offense or not depending upon the intent of the individual is the major point which the Government would like to leave with you. Thank you.