Opinion
No. 11281.
April 12, 1951.
Appellant not represented by counsel.
Walter R. Crawford, pro. per., U.S. Penitentiary, Leavenworth, Kan.
Claude P. Stephens, Lexington, Ky., for appellee.
Before SIMONS, MARTIN and MILLER, Circuit Judges.
Upon appeal from the denial of a motion to vacate sentence imposed for the theft of an automobile, the only points raised which are not wholly frivolous are that the appellant was without counsel when he pleaded guilty and that he had acquired possession of the automobile lawfully so that it was not a stolen automobile when it moved in interstate commerce.
The record shows clearly and conclusively that his waiver of counsel was both willingly and intelligently made. He was advised by the court that he was entitled to be represented by an attorney; that if he was without funds to employ an attorney the court would appoint one for him. In repetition of the question he made the same response. There is no merit to this ground of appeal.
It has repeatedly been held that one coming lawfully into possession of property, either with the intent at the time to appropriate it to his own use or arrives at that intention after possession, the crime is larceny. Tredwell v. U.S., 4 Cir., 266 F. 350, certiorari denied 253 U.S. 496, 40 S.Ct. 587, 64 L.Ed. 1031; Beck v. U.S., 62 App.D.C. 223, 66 F.2d 203; John v. U.S., 65 App.D.C. 11, 79 F.2d 136; Stewart v. U.S., 8 Cir., 151 F.2d 386. There is likewise no merit to the appellant's second point.
The judgment is affirmed.