460 F2d 1265 United States v. Moore

460 F.2d 1265

UNITED STATES of America, Plaintiff-Appellee,
v.
Orville MOORE, Defendant-Appellant.

No. 72-1045.

United States Court of Appeals,
Sixth Circuit.

June 1, 1972.

John W. Core, Lexington, Ky., for defendant-appellant.

William D. Kirkland, Asst. U. S. Atty., for plaintiff-appellee; Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., on brief.

Before WEICK and EDWARDS, Circuit Judges, and CECIL, Senior Circuit Judge.

PER CURIAM.

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1

Appellant appeals his conviction by a jury for interstate transportation of a motor vehicle, knowing it to be stolen, in violation of 18 U.S.C. Sec. 2312 (1970).

2

After he testified naming two individuals (who were never located) as being involved in possession of the subject automobile, the government sought and the District Judge gave a charge on aiding and abetting. Appellant contends that since he was indicted as a principal in the offense of transportation of a stolen vehicle, and no mention in the indictment of aiding and abetting was made, that this instruction was error and that his conviction must be set aside.

3

It appears to be settled law in this circuit, however, that an aider and abettor can be convicted as a principal. 18 U.S.C. Sec. 2 (1970); United States v. Milby, 400 F.2d 702, 706-708 (6th Cir. 1968). This appears to be particularly appropriate where defendant's own testimony (as here) suggests that others served as principals in the commission of the crime. United States v. Duke, 409 F.2d 669 (4th Cir. 1969), cert. denied, 397 U.S. 1062, 90 S.Ct. 1497, 25 L. Ed.2d 683 (1970). The United States Supreme Court provides this underpining for these rulings:

4

"Aiding and abetting has a broader application. It makes a defendant a principal when he consciously shares in any criminal act whether or not there is a conspiracy. * * * Aiding and abetting rests on a broader base; it states a rule of criminal responsibility for acts which one assists another in performing." Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S.Ct. 766, 770, 93 L.Ed. 919 (1949).

5

The judgment of the District Court is affirmed.