Roark v. United States

• Citation: 17 F.2d 570,51 ALR 870
• Decision Date: 31 January 1927
• Docket Number: No. 7436.,7436.
• Parties: ROARK v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

51 ALR 870, 17 F.2d 570 (1927)

ROARK v. UNITED STATES.

No. 7436.

Circuit Court of Appeals, Eighth Circuit.

January 31, 1927.

Roy H. Blackman, Asst. U. S. Atty., of Denver, Colo. (George Stephan, U. S. Atty., of Denver, Colo., on the brief), for the United States.

Before KENYON, Circuit Judge, and SCOTT and JOHN B. SANBORN, District Judges.

JOHN B. SANBORN, District Judge.

The plaintiff in error, defendant in the court below, challenges the legality of the sentences pronounced against him upon his plea of guilty to an indictment charging him with four violations of the White Slave Traffic Act (June 25, 1910, c. 395, 36 Stat. 825 Comp. St. §§ 8812-8819). He was charged, under the first count, with having, on November 20, 1925, caused a woman to be transported in interstate commerce by common carrier from El Paso, Tex., to Denver, Colo., with intent to induce her to engage in illicit intercourse with him; under the second count, with having on the same day persuaded and induced the same woman to go in interstate commerce to Denver to engage in illicit intercourse with him; under the third count, with having on the same day caused the same woman to go in interstate commerce to Denver with the intent of inducing her to engage in prostitution; and, under the fourth count, with having on the same day persuaded and induced her to go in interstate commerce to Denver, with intent to induce her to engage in prostitution.

The defendant was sentenced to five years' imprisonment and to pay a fine of $1,000 under the first count; to five years' imprisonment under the second count, to run concurrently with the sentence under the first; to five years' imprisonment and to pay a fine of $1,000 under the third count; and to five years' imprisonment under the fourth count, to run concurrently with the sentence under the third count. In other words, he was given a five-year sentence and a $1,000 fine under the first two counts, and a five-year sentence and a similar fine under the last two counts — a ten-year sentence of imprisonment all together and fines aggregating $2,000. His contention is that all four counts of the indictment charged but one offense, and that the maximum sentence of imprisonment was five years.

From the indictment it appears that each count relates to the same day, the same place, the same transportation in interstate commerce, and the same woman. The question presented, then, is whether one crime is variously charged under four separate counts, or whether distinct crimes are charged. Section 2 of the act (Comp. St. § 8813) makes any person who knowingly transports or causes to be transported in interstate commerce any woman or girl for the purposes of prostitution or debauchery or any other immoral purpose guilty of a crime. Section 3 (Comp. St. § 8814) makes any person who knowingly persuades or assists in persuading any woman or girl to go in interstate commerce for like immoral purposes guilty of a crime.

That the transportation of the same woman has been frequently charged in an indictment under various counts, as in this case, is evident. In Hays v. United States (C. C. A.) 231 F. 106, and 242 U. S. 470, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168, the defendant was charged with inducing a woman to go in interstate commerce and procuring transportation for her, and, under a second count, with having induced her to go in such commerce. He was convicted on both counts. In Diggs v. United States, 37 S. Ct. 192, 61 L. Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168, covered by the same opinion, the defendant was indicted under separate counts for transporting the woman and having procured a ticket for her. In Johnson v. United States (C. C. A.) 215 F. 679, L. R. A. 1915A, 862, the defendant was charged, under one group of counts, with having procured the transportation of a girl from Pittsburgh to Chicago for the purpose of illicit intercourse. In another group, the purpose laid was prostitution. The case was reversed, for resentence on the first group and a new trial on the second group.

In Suslak v. United States (C. C. A.) 213 F. 913, there were twelve separate counts all growing out of the same transportation. The first charged prostitution as the purpose; the second, unlawful cohabitation; the third, debauchery; the fourth, an intent to induce the woman to become a prostitute; the fifth, an intent to induce her to give herself up to debauchery. In the sixth, seventh, and eighth, the charge is that the defendant procured the railroad ticket, the intent being prostitution, debauchery, or to induce her to give herself up to debauchery. In counts 9 and 10, the charge was of persuading her to be transported for prostitution (ninth) and debauchery (tenth), and the eleventh and twelfth were in substance the same. The defendant was convicted upon all counts, and as to all except the second the conviction was sustained.

In Tobias v. United States (C. C. A.) 2 F.(2d) 361, the defendant was convicted on three counts for the same transaction: (1) The transportation of the woman; (2) the procuring of the ticket; and (3) for persuading and inducing her to go. In Jacobs v. United States, 2 F.(2d) 693 (C. C. A. 8th), the indictment was based on one transportation. There were six counts — the first two under the first and second sections of the act; the last four under the fourth section. In Athanasaw v. United States, 227 U. S. 326, on page 328, 33 S. Ct. 285, 286 (57 L. Ed. 528, Ann. Cas. 1913E, 911), the court said: "A crime is variously charged against sections 2 and 3 of the act in 39 counts, alleging that the transportation was `for the purpose of debauchery' or `to give herself up to debauchery.'"

There is no doubt that distinct violations of law growing out of the same transaction constitute distinct offenses. Ebeling v. Morgan, 237 U. S. 625, 35 S. Ct. 710, 59 L. Ed. 1151; Morgan v. Devine, 237 U. S. 632, 35 S. Ct. 712, 59 L. Ed. 1153; Burton v. United States, 220 U. S. 344, 26 S. Ct. 688, 50 L. Ed. 1057, 6 Ann. Cas. 392; Gavieres v. United States, 220 U. S. 338, 31 S. Ct. 421, 55 L. Ed. 489; Braden v. United States (C. C. A.) 270 F. 441; Albrecht, Sr., et al., Plaintiffs in Error, v. United States of America, 47 S. Ct. 250, 71 L. Ed. ___, filed January 3, 1927. In Morgan v. Devine, supra, it was held that one who broke into a post office and also committed larceny therein was guilty of separate offenses under sections 190 and 192 of the Penal Code (Comp. St. §§ 10360, 10362).

In Burton v. United States, supra, the defendant was charged, in separate counts, with receiving compensation in violation of the law, and also with agreeing to receive compensation in violation of the same law. The contention was that the defendant could not legally be indicted for two separate offenses, one agreeing to receive compensation, and the other receiving such compensation. The Supreme Court said, on page 377 (26 S. Ct. 697):

"There might be an agreement to receive compensation for services to be rendered without any compensation ever being in fact made, and yet that agreement would be covered by the statute as an offense, or, compensation might be received for the forbidden services without any previous agreement, and yet the statute would be violated. In this case, the subject-matter of the sixth count, which charged an agreement to receive $2,500, was more extensive than that charged in the seventh count, which alleged the receipt of $500. But Congress intended to place its condemnation upon each distinct, separate part of every transaction coming within the mischiefs intended to be reached and remedied. Therefore an agreement to receive compensation was made an offense. So the receiving of compensation in violation of the statute, whether pursuant to a previous agreement or not, was made another and separate offense. There is, in our judgment, no escape from this interpretation consistently with the established rule that the intention of the Legislature must govern in the interpretation of a statute. `It is the Legislature, not the court, which is to...