Garner v. United States

Decision Date13 April 1960
Docket Number16333.,No. 16332,16332
Citation277 F.2d 242
PartiesRobert James GARNER, Appellant, v. UNITED STATES of America, Appellee. Lester L. WEDDLE, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

James L. McMullin, Kansas City, Mo., for appellants.

John S. Boyer, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before SANBORN, MATTHES and BLACKMUN, Circuit Judges.

SANBORN, Circuit Judge.

Robert James Garner and Lester L. Weddle have appealed from sentences of imprisonment imposed upon them August 7, 1959, based upon the verdicts of a jury finding both guilty of violating 18 U.S.C. § 2422, the so-called White-Slave Traffic Act.

The indictment under which they were tried contained three counts. Count I, under 18 U.S.C. § 371, charged the defendants (appellants) with a conspiracy to violate 18 U.S.C. § 2422 by causing two women, named Connors and Slater, to be transported by common carrier from Omaha, Nebraska, to Kansas City, Missouri, for the purpose and with the intent of having them engage in prostitution. Count II charged the defendant Weddle with violating 18 U.S.C. § 2422 by intentionally causing the woman Slater to go by common carrier from Omaha to Kansas City for the purpose of engaging in prostitution. Count III charged Garner with causing the interstate transportation of Connors with like intent and purpose, in violation of the same statute.

The jury found the defendants not guilty of the conspiracy charged against them in Count I. Weddle was found guilty under Count II, and Garner under Count III.

It is asserted on their behalf: (1) that there was an inadequate evidentiary basis for their conviction; (2) that each of the verdicts of guilty was ambiguous and duplicitous because inconsistent with the verdict of acquittal under Count I; (3) that the evidence of a Government witness was improperly admitted; (4) that the court erred with respect to its instructions. While the appellants' brief does not comply with our Rule 11(b), Third, 28 U.S.C.A., in that it quotes neither the evidence nor the instructions complained of in the appellants' statement of the case, we have, nevertheless, read the record and considered the appellants' contentions.

The facts out of which this case arose are neither edifying nor interesting. The evidence need not be stated in complete detail. It is, in general, typical of such cases. The Government, as the prevailing party, is, of course, entitled to the benefit of all reasonable inferences which can be drawn from the evidence tending to support the verdicts. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680.

Under the uncontradicted evidence, these two defendants had been immorally associated with the two women referred to in the indictment, in Omaha, Nebraska — Weddle with Slater, and Garner with Connors. Both women were prostitutes. On the night of May 12, 1959, the defendants and the two women took a Burlington train from Omaha to Kansas City, Missouri. After arriving at Kansas City on the morning of May 13, and after visiting a bar, the couples went to the Rasbach Hotel, where Garner and Connors registered as "Mr. and Mrs. John J. Quinn," and Weddle and Slater as "Mr. and Mrs. Larry Wilson." On May 15 they all left that hotel and registered at the Surrey Court Apartments, in Kansas City, Missouri — Garner and Connors as "Mr. and Mrs. B. Quinn," and Weddle and Slater as "Mr. and Mrs. L. Wilson."

At the trial, Slater testified for the Government. The only inference which reasonably can be drawn from her evidence and that of other Government witnesses is that she and Connors, accompanied by the defendants, in accordance with a preconceived plan, traveled from Omaha to Kansas City, Missouri, by train for the purpose and with the intent, on the part of the defendants, of having the women engage in prostitution; that after arriving in Kansas City, Weddle, through bellboys at hotels, solicited "dates" for Slater, and Garner solicited "dates" for Connors, and that both women engaged in prostitution.

The testimony of Slater was not uncorroborated. Champion, a bellboy at the Aladdin Hotel in Kansas City, testified that Garner, after having secured a job at that hotel as a bellboy, told Champion he had a girl, and gave him Connors' telephone number; that Champion and another bellboy arranged "dates" for her at the hotel; that on one occasion, after completing a "date" which had been procured for her, she gave Champion $10.00, "the whole price of the trick," and he gave her back $6.00. It appears from the record that the professional career of Connors in Kansas City ended in June, 1959, when, in response to a call for a "date" at Room 700 in the Aladdin Hotel and after advising the man she found in that room of her asking price, she found herself under arrest by Officer Tracy of the Police Reserve of Kansas City, Missouri, who had taken the room in connection with his investigation of the prostitution activities in the hotel. It also appears from the record that, in addition to arresting Connors, Officer Tracy arrested the bellboy who had called her. Slater's career as a prostitute evidently ended when she was picked up by the vice squad and put in jail.

The defense of Garner, who testified in his own behalf, was, in substance, that he had no intention of going from Omaha to Kansas City on the night of May 12, but at the last moment was induced to go by Connors, who bought the tickets for both; that he thought that Weddle and Slater were going to Kansas City to get married, and that he and Connors were to see them off. His evidence and that given by Connors tended to support his claim that she persuaded and induced him to go to Kansas City and that he had no intention of having her engage in prostitution at that place.

Under the evidence, the question of the guilt or innocence of the defendants was clearly for the jury. It was a fair inference from the evidence that the defendants had intended to do what the evidence showed they did do. See and compare, Dunn v. United States, 10 Cir., 190 F.2d 496, 498.

There was nothing ambiguous about the verdicts of the jury finding Weddle guilty under Count II, and Garner guilty under Count III. The contention that, because the jury saw fit to acquit the defendants of conspiracy to transport the women as charged in Count I, the defendants should be granted a new trial upon the other counts, is without merit. A substantive offense and a conspiracy to commit it are separate offenses. Pinkerton v. United States, 328 U.S. 640, 643-644, 66 S.Ct. 1180, 90 L. Ed. 1489. Furthermore, inconsistency in a verdict on the separate counts of an indictment or information does not entitle a defendant to the reversal of a conviction. Dunn v. United States, 284 U. S. 390, 393-394, 52 S.Ct. 189, 76 L.Ed. 356; United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 88 L.Ed. 48; Schaefer v. United States, 8 Cir., 265 F. 2d 750, 754-755 and cases cited.

The testimony of Officer Tracy as to his conversation with the bellboy, at the Aladdin Hotel, who arranged to have Connors go to Tracy's room, where she was arrested, was, no doubt, hearsay and the objection to it should have been sustained, but the burden is on the defendants to show that its admission constituted both error and prejudice. Goldstein v. United States, 8 Cir., 63 F.2d 609, 614....

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