Batsell v. United States, 14935.

Decision Date06 December 1954
Docket NumberNo. 14935.,14935.
Citation217 F.2d 257
PartiesFrank BATSELL, Also Known as Frank Batsel, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

COPYRIGHT MATERIAL OMITTED

E. C. Mogren, St. Paul, Minn., for appellant.

Alex Dim, Asst. U. S. Atty., St. Paul, Minn. (George E. MacKinnon, U. S. Atty., St. Paul, Minn., was with him on the brief), for appellee.

Before GARDNER, Chief Judge, and WOODROUGH and VOGEL, Circuit Judges.

VOGEL, Circuit Judge.

Appellant Frank Batsell, was convicted by a jury of violating the Mann Act, 18 U.S.C. § 2421. He appeals to this Court, asking that the conviction be set aside or that a new trial be granted.

In view of the fact that a jury found against the appellant, this Court must consider, in its determination of the present appeal, the facts most favorable to sustaining the jury's verdict. Jensen v. United States, 8 Cir., 1954, 213 F.2d 781; Cwach v. United States, 8 Cir., 1954, 212 F.2d 520.

Two cases were consolidated and tried together and a single record was made of the evidence. In the first case appellant Batsell and one Teddy Roosevelt Qualls were charged jointly with having violated the Mann Act on October 15, 1951, through having knowingly transported one Gloria Jordell from Minneapolis, Minnesota, to Milwaukee, Wisconsin, for the purpose of prostitution, debauchery, and other immoral purposes. In the second case, the appellant alone was charged with a separate violation of the same act on or about August 15, 1951, through having transported the same girl from Minneapolis, Minnesota, to the State of Wisconsin for like purposes. Pleas of not guilty were entered by both defendants and by agreement both cases were tried before the same jury. The jury returned a verdict of not guilty as to both defendants in the first case, but in the second case — the case wherein the appellant alone was charged — they returned a verdict of guilty. It is from this verdict that appeal is taken.

The facts upon which the conviction was based, as established by the evidence, are briefly as follows: Gloria Jordell, the victim of the appellant's illegal acts, was a prostitute operating in Minneapolis under the direction of the appellant. The appellant was acquainted with a person in Duluth, Minnesota, who he believed could obtain work for the victim in the City of Superior, Wisconsin, which is but a short distance from Duluth. It was therefore proposed that they drive from Minneapolis to Duluth and that at Duluth the appellant would communicate with the person who he believed could get her into a house of prostitution in Superior, Wisconsin. On the date in question, August 15, 1951, accompanied by four friends, Marcella Martin, her husband Levi Martin, Betty Amis, and her boy friend George Shelton, they started out in the appellant's car with appellant driving. En route to Duluth they ran into road difficulty. In an effort to avoid such difficulty they turned east, crossing the state line into Wisconsin, wherein they continued traveling until they reached and passed through Superior, Wisconsin, thereafter crossing the state line again into Minnesota, arriving at Duluth. At Duluth the appellant made a telephone call, subsequent to which he advised Gloria Jordell that he was unable to make the arrangements for her to work in Superior and that there was "nothing doing".

Appellant's first claim is that there is no substantial evidence in support of the verdict. This contention cannot be sustained. Gloria Jordell, the victim, testified positively to conversations with the appellant prior to leaving Minneapolis concerning the purpose of the trip, his intention to get work for her in a house of prostitution in Superior, Wisconsin, and his contact man who would be found in Duluth. Marcella Martin, one of the persons in the car, while testifying that the trip was for pleasure only, did, however, state that she heard some conversation between the appellant and Gloria to the effect that they were trying to get a "job" for Gloria. The record indicates that while Batsell, who was driving, and the other two men in the automobile deny that they crossed the state line into Wisconsin, Gloria Jordell, who sat in the front seat with Batsell, testified that she held a road map on her lap and guided him in taking the Wisconsin highway and in passing through towns in Wisconsin, including Superior.

Viewing these positive assertions by Gloria Jordell in the light most favorable to the jury's determination, which we must do, it is the opinion of this Court that such evidence could well sustain the finding of the jury. The jury evidently attached more credibility to the testimony of Gloria Jordell than to that of the appellant Batsell or the other men in the automobile. Such is the prerogative of the jury which this Court cannot invade in order to weigh and consider the testimony of the witnesses. Our only province is to determine whether there is present in the record testimony which can fairly sustain the verdict rendered. A jury verdict, when based upon substantial evidence, is conclusive unless error is present in the record. See Cwach v. United States, supra.

Appellant urges that the verdict was the result of passion and prejudice. This claim is based largely upon the fact that two cases were tried before the same jury and that Gloria Jordell, who was the chief witness for the prosecution in both cases, was disbelieved by the jury in the first case. Inasmuch as the jury disbelieved her in the first case, appellant argues that she should be held completely discredited in the second case also, and that therefore the verdicts are inconsistent and the conviction in the instant case cannot be upheld.

The law is well settled that even if the verdicts were inconsistent, such inconsistency will not invalidate the guilty verdict. See Langford v. United States, 9 Cir., 1949, 178 F.2d 48, at page 52, wherein the Court stated:

"We do not think the acquittal on the first count is inconsistent with conviction on the second count, but even if it were, consistency in the verdict is not required."

See also Dunn v. United States, 1932, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356:

"Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment."

Point is also made of the fact that the appellant admitted that he had been previously convicted in the same court of a violation of the Mann Act with the same person, Gloria Jordell, through transporting her from Minnesota into South Dakota, and that that conviction was made by jurors of the same panel from which the present jury had been selected. No challenge was made to the jury panel which tried the instant case. No juror who sat on the South Dakota case sat on the instant case. In addition thereto, defendants used only six of their ten peremptory challenges. No prejudice is shown. The right to challenge the panel or to challenge a particular juror may be waived, and in fact is waived by failure to seasonably object. Carruthers v. Reed, 8 Cir., 1939, 102 F.2d 933, 939. It is established that failure to object at the time the jury is empaneled operates as a conclusive waiver if the basis of the objection is known or might have been known or discovered through the exercise of reasonable diligence, or if the party is otherwise chargeable with knowledge of the ground of the objection. 50 C.J.S., Juries, § 251.

Nothing in the record here indicates that the appellant lacked knowledge that his prior conviction was at the hands of a jury chosen from the same panel as the jury in the present conviction. Even so, he has failed to indicate that any of...

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