Nunnally v. United States

• Decision Date: 12 June 1961
• Docket Number: No. 18729.,18729.
• Citation: 291 F.2d 205
• Parties: Ann S. NUNNALLY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

291 F.2d 205 (1961)

Ann S. NUNNALLY, Appellant, v. UNITED STATES of America, Appellee.

No. 18729.

United States Court of Appeals Fifth Circuit.

June 12, 1961.

L. H. Walden, Montgomery, Ala., John C. Walters, Troy, Ala., for appellant.

Hartwell Davis, U. S. Atty., Ira De-Ment, Asst. U. S. Atty., Montgomery, Ala., for appellee.

Before JONES and BROWN, Circuit Judges, and DE VANE, District Judge.

JOHN R. BROWN, Circuit Judge.

This appeal from a Mann Act conviction asserts directly two things. First, there was either insufficient evidence to show transportation by the specified common carrier, or at least there was a fatal variance between the allegation and proof. And second, there was insufficient evidence to show that the purpose of transportation was to engage in prostitution on arrival at destination. We reject these contentions and affirm.

Unlike the usual Mann Act case where conviction is based on either the act of transportation or the procurement of transportation of a person for immoral purposes under § 2421, this arises under § 2422. 18 U.S.C.A. § 2422. Of course it is the interstate transportation which makes the crime a federal one in both instances. But § 2422 punishes one who "* * * knowingly persuades, induces, entices, or coerces any woman * * * to go from one place to another in interstate * * * commerce * * * for the purpose of prostitution * * *, or with the intent and purpose on the part of such person that such woman * * * shall engage in * * * prostitution * *" and as a consequence "thereby knowingly causes such woman * * * to be carried * * * as a passenger upon * * * any common carrier * * * in interstate * * * commerce * *," § 2422. The offense of causing transportation of a woman under § 2421 and the offense of inducing a woman to go in interstate commerce for immoral purposes under § 2422 constitute separate crimes. La Page v. United States, 8 Cir., 1945, 146 F.2d 536, at page 538, 156 A.L. R. 965; United States v. Saledonis, 2 Cir., 1938, 93 F.2d 302, at page 303; see also Wagner v. United States, 5 Cir., 1949, 171 F.2d 354, at pages 363, 364, certiorari denied 337 U.S. 944, 69 S.Ct. 1499, 93 L.Ed. 1747; Roark v. United States, 8 Cir., 1927, 17 F.2d 570, at page 573. Under § 2422 it is inducing the transportation for the immoral purpose that is the crime, rather than the furnishing or procuring of the transportation as such. Hence, for example, it is not necessary to establish that the accused pay for or provide the transportation. See United States v. Reed, 2 Cir., 1938, 96 F.2d 785, at page 787, certiorari denied 305 U.S. 612, 59 S.Ct. 71, 83 L.Ed. 399.

That was the theory of the indictment and prosecution here. The evidence amply warranted the finding that the defendant maintained a house of prostitution in Montgomery, Alabama. The indictment, tracking substantially the language of the statute, asserted that she had induced Sherry to go from "Athens, Georgia to Montgomery, Alabama" so that defendant "thereby did knowingly cause" Sherry to be transported as a passenger upon the line of a common carrier "to-wit, the line and route of Southeastern Greyhound Lines * * *."

There was certainly enough evidence to support the finding implied by the verdict of guilty that defendant did induce Sherry to come to Montgomery. Bell v. United States, 8 Cir., 1958, 251 F. 2d 490, at page 492. The defendant had one or more long distance telephone calls in which she urged Sherry to come, reassuring her on the general state of business. Sherry agreed to come, although some personal matters would delay her trip for a week or so. These personal plans made it impossible for her to accompany the man through whom defendant had first contacted Sherry by long distance. He traveled by bus from Georgia to Montgomery and on his arrival there he took up his abode at the defendant's house. In a few days Sherry likewise came to Montgomery. On her arrival she called defendant's house and the defendant sent her white Lincoln automobile to pick up Sherry. Sherry was met at the bus station which the witnesses described as the Greyhound Bus Station located near the Post Office and Court Building in Montgomery. Sherry had in her possession a bus ticket stub.

The defendant insists that the direct evidence showing that Sherry arrived by "Greyhound Bus" and got off the bus at the "Greyhound Bus Station" is insufficient proof that she traveled by common carrier on the "Southeastern Greyhound Lines," and that in any event there is such a variance that a new trial should be granted. The record shows that defendant's counsel was as indiscriminate in the use of these handy terms as were the witnesses. In one instance he referred to "Southeastern Greyhound bus" and in another to "Southeastern Greyhound Bus Line."

The record is quite adequate when the matter is tested in terms of the requirements of the substantial rights "* * * (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense * * * and (2) that he may be protected against another prosecution for the same offense. * * *." Berger v. United States, 1935, 295 U.S. 78, at page 82, 55 S.Ct. 629, at page 630, 79 L.Ed. 1314. The evidence was uncontradicted that Sherry had traveled by bus from Georgia to Alabama. Interstate buses are now, and have been for many years, subject to federal regulation as common carriers. 49 U.S.C.A. §§ 301-327. The variance was slight at most. And it is now "* * * true, * * * that however this technical variance might in times passed have operated to prevent the common sense disposition of an appeal in a criminal case, such considerations have no weight...