BRATTON, Chief Judge.
Drawn under 18 U.S.C.A. § 2312, the information in this case charged that appellant transported a certain stolen automobile from Los Angeles, California, to a point near Salida, Colorado, knowing that it had been stolen. The jury found appellant guilty; the court sentenced him to imprisonment; and he appealed.
The first contention advanced on behalf of appellant is that the court erred in denying the motion for a directed verdict of not guilty. The substance of the
Viewed in the light of the general rule to which reference has been made, we come to the question whether the evidence was sufficient to withstand the motion for a directed verdict and to sustain the verdict of the jury. Evidence was adduced which tended to establish these facts. Cathy's Driveaway in Chicago was engaged in the business of securing drivers for automobile dealers desiring to have automobiles transported from Chicago to various points of destination throughout the country. The company did not own the automobiles transported. They were owned by others. On August 13, 1956, appellant went to the place of business of the company and there entered into a written bailment agreement to drive the automobile described in the agreement and in the information in this case from Chicago to San Francisco. The automobile belonged to U. S. Auto Leasing Company of Chicago and was to be driven from Chicago to San Francisco. Upon reaching San Francisco, it was to be delivered to Neil McNeil. The agreement recited that Route 30 was to be followed to Salt Lake City and then Route 40 to San Francisco. Later in the day, or on the following day, U. S. Auto Leasing Company delivered the automobile into the possession of appellant for transportation to San Francisco and delivery there. Appellant departed with the automobile; did not subsequently communicate with Cathy's Driveaway; did not communicate with U. S. Auto Leasing Company; did not communicate with McNeil; and did not deliver the automobile to McNeil. On or about August 20, he was in Richmond, Missouri, with an automobile in his possession similar in description to the one delivered to him for transportation to San Francisco. On December 31, he went to the home of a friend in Torrance, Los Angeles County, California, with an automobile in his possession likewise similar to the one delivered to him for such transportation. On March 6, 1957, he was apprehended at a point near Salida, Colorado. At the time of apprehension, he had in his possession the automobile which U. S. Leasing Company had delivered to him for transportation and delivery; he took from the glove box of the automobile a copy of the bailment agreement; and he had on his person a credit card issued to R. L. Wattel, 17 Mira Mar, Long Beach, California. He stated that his name was Wattel; that the automobile belonged to a driveaway company; and that Mr. O'Dell had picked him up when he was hitchhiking and turned the automobile over to him to be transported to the State of Washington. At the time the automobile
The action of the court in admitting in evidence the credit card and the testimony of the officer who apprehended appellant detailing certain statements made by appellant relating to the card is challenged. The substance of the testimony given by the officer was that appellant said the automobile belonged to a driveaway; that the name of appellant was Wattel; that his home address was that shown on the credit card; that he was working for another company; that he charged everything on the card; and that his employer made payment therefor. It is argued that the evidence tended to show that appellant had committed a crime independent of and unconnected with that for which he was on trial and therefore it was inadmissible. Of course, an accused cannot be convicted upon evidence that he committed another offense; and ordinarily evidence tending to show the commission of a crime wholly separate from, independent of, and without any relation to the one laid in the indictment or information in the case on trial is not admissible. But that general rule is not without exception. Relevant evidence which tends to prove a material fact in the case on trial is admissible even though it incidentally shows that the accused committed another offense at a different time and place. The test in measuring the admissibility of evidence is whether it is material to any issue in the case on trial. If so, it should be admitted even though it tends to establish the commission of another crime. Suhay v. United States, 10 Cir., 95 F.2d 890, certiorari denied 304 U.S. 580, 58 S.Ct. 1060, 82 L.Ed. 1543; Troutman v. United States, 10 Cir., 100 F.2d 628; Crapo v. United States, 10 Cir., 100 F.2d 996; Legatos v. United States, 9 Cir., 222 F.2d 678. The evidence tended to establish the fact that appellant did not own the automobile; tended to establish the fact that he transported it from Los Angeles to a point near Salida, as charged in the information; and tended to throw light upon the intent and motive of such transportation. It therefore was not open to the objection that it was inadmissible because it tended to prove the commission of another crime. Morlan v. United States, 10 Cir., 230 F.2d 30.
The remaining contention is that the court erroneously declined to permit further inquiry into the facts relating to certain interviews of appellant occurring in jail without the presence of his counsel. It is urged that the right to have assistance of counsel in the conduct of one's defense in a criminal case is a guarantee of the Constitution; that such right means effective assistance of counsel at all stages of the proceeding; that the interrogation of appellant by an agent of the Government while appellant was in jail awaiting trial and while represented by counsel, without the presence, knowledge, or consent of such counsel, contravened the constitutional right of appellant to have the assistance of counsel; and that he should have been permitted to inquire into the circumstances of the interviews and to have claimed his rights as the facts might warrant. The witness Sheets testified that he was a special agent of the Federal Bureau of Investigation; that he interviewed appellant on three different occasions; that one interview occurred at the jail in Salida; that the other two occurred in the jail at Denver; and that on each occasion he advised appellant that he did not have to talk; that he had the right to have an attorney; and that anything he said could be used in court against him. In the course of direct
The judgment is affirmed.