Freed v. United States

• Citation: 266 F. 1012
• Decision Date: 05 April 1920
• Docket Number: 3314.
• Parties: FREED v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

266 F. 1012

FREED v. UNITED STATES.

No. 3314.

United States Court of Appeals, District of Columbia.

April 5, 1920

Submitted March 1, 1920.

Appeal from the Supreme Court of the District of Columbia.

J. A O'Shea, of Washington, D.C., for appellant.

J. E Laskey, U.S. Atty., and T. Hardy Todd and Morgan H. Beach Asst. U.S. Attys., all of Washington, d.C.

ROBB Associate Justice.

Appellant, defendant below, was convicted in the Supreme Court of the District under two counts of an indictment, the first of which charged that on a certain day he transported, caused to be transported, and aided and assisted in transporting, in interstate commerce for the purpose of prostitution, a woman by the name of Sue McLain; the second count being a duplicate of the first, except that the name of the woman was Blanche Phillips. The sentence was 5 years in the penitentiary.

The defendant was 20 years of age and the driver of an automobile, receiving a commission on its earnings in addition to wages. The evidence for the government tended to show that he aided the two women named in procuring men with whom illicit relations were to be had; that, having brought the men and women together, the party would be driven across the Potomac river into Virginia in defendant's automobile, where the illicit acts would take place (but not in the presence of defendant), the men paying the women, and also paying defendant for transporting them. The witnesses for the government were the two women named in the indictment, a third woman who accompanied them and participated in the occurrences upon which the indictment was based, and two of the men who were members of the party. One other witness testified to seeing defendant drive the party away from the place in this city where the two women were stopping on the night in question.

The indictment was in proper form. Kidwell v. U.S., 38 App.D.C. 566; Wiborg v. U.S., 163 U.S. 632, 16 Sup.Ct. 1127, 1197, 41 L.Ed. 289; Anderson v. U.S., 170 U.S. 481, 18 Sup.Ct. 689, 42 L.Ed. 1116. The statute (36 Stat. 825 (Comp. St. Secs. 8812-8819)) contemplates that the offense denounced therein may be committed in various ways, and the pleader has merely paraphrased the statute. The two offenses, growing out of the same transaction, are so connected as to be within the provisions of section 1024, R.S. (Comp. St. Sec. 1690), which we reviewed in the Kidwell Case.

A more serious question is involved in the next contention of defendant, based upon his request for an instruction that, if the jury should find that the women named in the indictment were accomplices, they then would have to inquire whether or not there was corroborating evidence, and for another instruction that the testimony of these women should not be taken as that of ordinary witnesses, but 'ought to be received with suspicion, and with the very greatest care and caution. ' These prayers were refused, and the only instruction given in this connection was the following:

'Now a general comment in regard to the witnesses. You have seen the witnesses on the stand, and you have heard what they have had to say; you have noticed their manner of testifying, and you have heard more or less about what kind of people they are. All these things you should also keep in mind when you are weighing the testimony of any witness, in order to determine what credibility it is entitled to.'

At common law the uncorroborated testimony of an accomplice will support a verdict of conviction. But the decisions all recognize the unsatisfactory character of such testimony, and the serious infirmities with which it is attended, and in many jurisdictions the common-law rule has been changed by statutes expressly declaring that the uncorroborated testimony of an accomplice cannot sustain a conviction.

'These statutes crystallize in a rule of positive law what was already a rule of practice, which to greater or less extent courts regarded themselves bound to observe; for it has long been the custom, both in England and America, for the courts, not only to caution the jury as to the danger of acting upon the unsupported testimony of an accomplice, but to advise them not to convict, unless there is some corroborating evidence.' 1 R.C.L.p. 167.

For more than 40 years in this jurisdiction it has been the practice to safeguard the interests of accused in prosecutions for serious offenses, where the testimony of accomplices has been admitted, by bringing directly to the attention of the jury the nature of such evidence, and the danger of convicting unless they should find supporting or corroborating evidence. Thus in United States v. Neverson, 1 Mackey (12 D.C.) 152, the court instructed the jury:

'That the testimony of accomplices is admitted from necessity, it being often impossible to bring the principal offenders to justice, without having recourse to such evidence; and the jury may, if they see fit, act upon the evidence of an accomplice, even in a capital case, without any confirmation of his statement. * * * The court advises the jury that, if they shall believe from the evidence that Johnson (a witness) was an accomplice in the murder, the jury should not convict the prisoners upon the testimony of Johnson alone and without corroboration.'

In Maxey v. U.S., 30 App.D.C. 63, the jury had been instructed that--

'The general rule is that, where an accomplice testifies in a case, his or her testimony is to be taken with great caution, because of the guilt which he has to admit himself as against himself. And the rule is that the jury are to be cautioned not to find defendants guilty upon the uncorroborated testimony of accomplices. They may do so, but the rule is for the court to caution them * * * not to do that without corroborating testimony.'

In Thompson v. U.S., 30 App.D.C. 352, 12 Ann.Cas. 1004, a woman upon whom an abortion had been committed was a witness, and the defendant insisted that she was an accomplice. The trial court rejected this contention, but instructed the jury that--

'While she is not an accomplice, strictly speaking, inasmuch as, from her own evidence, she morally implicates herself in the act, the jury should consider that circumstance as bearing on her credibility.'

This court found she was not an accomplice and that--

'The instruction in regard to the credibility of the witness was as much as the defendant had a right to expect.'

The latest expression of the Supreme Court of the United States upon this subject is to be found in Caminetti v. U.S., 242 U.S. 470, 495, 37 Sup.Ct. 192, 61 L.Ed. 442, L.R.A. 1917F, 502, Ann. Cas. 1917B, 1168. There the trial court had been asked to instruct the jury that certain witnesses were accomplices, a controverted question. The court referred to its decision in Holmgren v. U.S., 217 U.S. 509, 30 Sup.Ct. 588, 54 L.Ed. 861, 19 Ann.Cas. 778, where the trial court had been asked, in effect, to rule as matter of law that a witness was an accomplice, and the Supreme Court said:

'The request did not properly state the law, as it assumed that Werta (a witness) was an accomplice, a conclusion which was controverted, and against which the jury might have found in

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