Gowling v. United States

• Decision Date: 06 December 1920
• Docket Number: 3540.
• Citation: 269 F. 215
• Parties: GOWLING v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

269 F. 215

GOWLING v. UNITED STATES.

No. 3540.

United States Court of Appeals, Ninth Circuit.

December 6, 1920

Frank A. Duryea, of San Francisco, Cal., for plaintiff in error.

Frank M. Silva, U.S. Atty., and Wilford H. Tully, Asst. U.S. Atty both of San Francisco, Cal.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

HUNT Circuit Judge.

Gowling was convicted under an indictment of five counts, the first of which charged that he willfully and feloniously transported and aided and assisted in transporting in interstate commerce from Reno, Nev., to Sloat, Cal., by means of an automobile running over the public highways of the United States, the automobile being driven and controlled by Gowling, Mrs. M. Northcutt, otherwise known as Mrs. W. E Gowling, for a certain immoral purpose, debauchery. The counts vary only in the allegation of the purpose of the alleged transportation.

A general and special demurrer was overruled, and the action of the court is assigned as error. The argument is that the indictment fails to allege that the alleged transportation was in interstate commerce, within the meaning and intent of the act of Congress of June 25, 1910 (Comp. St. Secs. 8812-8819), for the prevention of white slave traffic. But as the indictment charges that the defendant transported and aided and assisted in transporting the woman in interstate commerce in and by means of a certain automobile running over the public highways of the United States, the automobile then and there being in such transportation, and operated and controlled by the defendant, it is sufficient. In Wilson v. United States, 232 U.S. 563, 34 Sup.Ct. 347, 58 L.Ed. 728, the Supreme Court held that it is not essential in order to constitute the offense that the transportation be by common carrier; the court saying:

'The prohibition is not in terms confined to transportation by common carrier, nor need such limitation be implied * * * to sustain the constitutionality of the enactment. As has already been decided, it has the quality of a police regulation, although enacted in the exercise of the power to regulate interstate commerce (Hoke v. United States, 227 U.S. 308, 323; Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 215); and since this power is complete in itself, it was discretionary with Congress whether the prohibition should be extended to transportation by others than common carriers.'

We think the allegations of the indictment are too plain to call for further discussion. Caminetti v. United States, 242 U.S. 470, 37 Sup.Ct. 192, 61 L.Ed. 442, L.R.A. 1917F, 502, Ann. Cas. 1917B, 1168.

Passing to the other more important assignments, we will take them up in the order in which they are presented by the brief of plaintiff in error.

A witness, in testifying for the defendant, said that he knew the reputation of defendant in the place in which he had lived. The court asked whether defendant had lived there long enough to acquire a general reputation in the neighborhood. Witness replied: 'Yes, sir; it was a small place. ' The court then said: 'A small reputation or a small place? ' The witness replied, 'A small place, Mr. Duryea.' Counsel for defendant objected and noted an exception. The court then said:

'Let that question be stricken out. I misunderstood the witness. The remark will be withdrawn.'

The prompt statement by the judge that he had misunderstood the witness, and the direction that the question and remark were withdrawn, removed any possible prejudice to the rights of the defendant on trial.

It appears that C. A. Northcutt, husband of the Mrs. Northcutt named in the indictment, testified that he had two children, while Mrs. Northcutt testified that she and Northcutt were married April 12, 1911, and had three children; the youngest born April 6, 1918. She said that she and her husband lived together for about 3 weeks immediately prior to July 28, 1917, when he went abroad. Northcutt testified that he had been away for about 20 months at war, and that he had last seen his wife July 28, 1917, and that the last child was born April 6, 1918; that he had not seen his wife from July 28, 1917, to January 25, 1919. These dates presented a question of the legitimacy of the infant. The court declined to permit the child to be brought into the presence of the jury, and overruled the motion of the defendant to strike out the testimony bearing upon the legitimacy of the last child. The court stated that there was nothing to strike out, that the testimony had gone in without objection by the defendant, and that there was no legal objection to evidence tending to show that Northcutt was not the father of the child. We think that the court was right, for, as said by the judge, while the legitimacy of the child was not the issue involved, the case being one between the government and the defendant, it was competent for the prosecution to prove, if it could, that the defendant was the father of the infant. Melvin v. Melvin, 58 N.H. 569, 42 Am.Rep. 605; Greenleaf on Evidence, Sec. 28.

In his argument to the jury the district attorney referred to a matter which had occurred on the trial as one of the cleverest things done by the defendant during the trial, 'except one that the law forbids me to mention, gentlemen of the jury. ' Counsel for defendant at once excepted to the remark of counsel for the government. Thereupon the following colloquy occurred:

'The Court: What remark?

'Mr. Duryea: Referring to the matter he was forbidden to mention before the jury.

'The Court: What does he refer to?

'Mr. Duryea: I do not know, but I think it is a remark that is detrimental to the defendant in this case.

'The Court: You must explain it yourself, so that I can understand you.

'Mr. Duryea: If counsel knows of something he does not dare refer to--

'The Court: I do not understand your reasoning myself.

'Mr. Duryea: I don't know what he means myself.'

Thereupon counsel for the government proceeded and commented upon the attitude of the defendant 'in hiding behind the skirts' of Mrs. Northcutt, and leaving her 'alone to bear the brunt of this whole proposition on the witness stand alone. ' Again counsel for defendant o...