United States v. John Patrick Dunn , 418 F.2d 245 ( 1970 )

418 F.2d 245

UNITED STATES of America, Appellee,
v.
John Patrick DUNN, Appellant.

No. 13702.

United States Court of Appeals Fourth Circuit.

Argued November 5, 1969.

Decided November 14, 1969.

Certiorari Denied March 2, 1970.

See 90 S. Ct. 992.

Norman B. Smith, Greensboro, N. C., for appellant.

William L. Osteen, U. S. Atty. (Richard M. Dailey, Jr., Asst. U. S. Atty., on brief), for appellee.

Before WINTER, and CRAVEN, Circuit Judges and WIDENER, District Judge.

PER CURIAM:

1

We think the evidence abundantly establishes that the vehicle was stolen and that this Dyer Act defendant knew it was stolen when he transported it in interstate commerce. The district judge's comment that defendant "knew or should have known" that the automobile was stolen was, we think, merely an inexact way of expressing his appraisal of the evidence as establishing guilt beyond a reasonable doubt. Had it occurred in a trial to a jury we would be concerned, for the proper test is, of course, not whether Dunn should have known the vehicle was stolen, but whether he knew it was. The out of context inaccuracy of the phrase, however, is overcome by the district judge's other statements showing that he did not try the case under misapprehension of law.

2

We have considered exceptions to the admission of evidence. If error occurred we think it harmless. In the reception of seized evidence we find no deprivation of Fourth Amendment rights.

3

Accordingly the conviction is affirmed.

4

Affirmed.