56 F.Supp. 890 (D.Utah 1944), Crim. 14475-14477, United States v. Cleveland

Docket Nº:Crim. 14475-14477
Citation:56 F.Supp. 890
Party Name:United States v. Cleveland
Case Date:May 22, 1944
Court:United States District Courts, 10th Circuit, District of Utah
 
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Page 890

56 F.Supp. 890 (D.Utah 1944)

UNITED STATES

v.

CLEVELAND and five other cases.

Criminal Nos. 14475-14477, 14478, 14480, 14481, 14483, 14489.

United States District Court, D. Utah

May 22, 1944

Page 891

Dan B. Shields, U.S. Atty., and John S. Boyden, Asst. U.S. Atty., both of Salt Lake City, Utah, for plaintiff.

J. H. McKnight, Claud T. Barnes, and Knox Patterson, all of Salt Lake City, Utah, for defendants.

KENNEDY, District Judge.

The above entitled causes involve indictments against the defendants in the form of eight separate and distinct charges some of which indictments include more than one count. Eight of these indictments are brought under the Mann Act, or 'White Slave Traffic Act', 18 U.S.C.A. § 398, and one under the so-called 'Lindbergh Act', 18 U.S.C.A. § 408a.

After the presiding Judge of the District had retired in consequence of an affidavit of prejudice in one case and likewise voluntarily withdrew in the other cases, the writer of this memorandum was assigned to the Utah District for the purpose of disposing of said cases.

Motions were interposed by defendants to quash the indictments upon the ground that they were not properly brought under the Acts mentioned, and on account of irregularities occurring in connection with the grand jury which returned the indictments. These motions to quash were all argued orally and overruled, the first motion upon the ground that the indictments had every appearance of regularity upon the face to be within the scope of the Act under which they were brought, and the second upon the ground that there was no evidence or proof before the Court that there was any bias or prejudice or irregularities in the action of the grand jury upon which the Court could presume to act in the premises, other than an allegation that the foreman of said jury was a member of a different sect of which the defendants were alleged to be adherent, which was considered insufficient to sustain the motion in the absence of any affirmative showing that the foreman of the grand jury personally entertained views antagonistic to the defendants or, even if he did, that there was no showing as to any bias or prejudice on the part of any of the other members of the grand jury returning said indictments. The Court will now adhere to the original rulings upon said motions.

After considerable discussion in open Court as to the manner in which said cases would be disposed of, a trial jury being then and there in attendance, it was agreed that the several cases would be submitted to the Court without the intervention of a jury upon a stipulation of facts, and the Trial Judge thereupon reluctantly, if for no other reason than to protect the Court and the community from unsavory details of evidence and unpleasant notoriety, accepted the responsibility with the understanding that the defendants would be severally arraigned, enter their pleas of not guilty, waive trial by jury and agree personally to abide by the stipulation of their counsel as to the facts in each case, which procedure was thereafter carried into effect. On behalf of each and every defendant a motion for his discharge and entry of judgment of not guilty was interposed and the Court provided by order that trial briefs should be filed by counsel after the receipt of which the decision in the several

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cases would be taken under advisement. Such trial briefs have been submitted and are now before the Court for consideration.

It would be impractical in this memorandum to set out in detail the charges in the indictments or the stipulated facts upon which the government relies in support of the charges therein contained, but a brief rehearsal in each of the cases would seem to be necessary as a foundation for a decision of the Court, omitting some of the more sordid details.

In the Cleveland case, No. 14475, it is charged that the defendant transported Kathryn Lucy Collinwood from the State of Utah to the State of Wyoming for the purpose of debauchery and for the purpose of sexual intercourse, said woman not then being the wife of the said defendant but for the purpose that she should be and act as his mistress and concubine. In No. 14476 it is charged that he transported Marcia Covington from the State of Utah to the State of California for the same purposes as set forth in the previous indictment; and in No. 14477, in the first count, it is charged that he transported one Marie Beth Barlow from the State of Utah to the State of Colorado for the purposes aforesaid; in the second count it is charged that the defendant transported the same woman for the purposes aforesaid from the State of Utah to the State of Colorado, and in the third count that he transported Kathryn Lucy Collinwood from the State of Utah to the State of Wyoming for the same purposes. In the stipulated facts, which were accepted by the agreement as the proofs in the case, it appears that the women were transported by the defendant as charged in the indictments and that sexual relations were indulged between the defendant and each of said women and that he lived with each of said women in the relationship of husband and wife. It is stipulated that the defendant committed said acts as a believer in the practice of polygamy in having more than one wife at the same time and that in so acting he was practicing the original doctrines of his church.

In the Darger case, No. 14478, the defendant is charged with unlawfully transporting, for the immoral purpose of having one Jean Barlow to live with him as his mistress and concubine, from the State of Colorado to the State of Utah. In the stipulation of facts it is shown that the defendant was married in 1926 to Aldora McDaniel, from whom he secured a divorce in Nevada in April 1943, but that in 1942 the defendant had two plural wives in addition to his lawful wife and that one of these, to-wit: Jean Barlow, he transported by automobile from the State of Colorado to the State of Utah where he lived with the said Jean Barlow and his other wives in a state of plural marriage, all of which acts were in accordance with a religious belief of defendant.

In the Jessop case, No. 14480, the indictment charges that the defendant transported one Mae Johnson from the State of Utah to the State of Arizona for the purpose of debauchery and for the further immoral purpose that the said woman should become his mistress and concubine. In the agreed statement as the government testimony, it appears that the defendant was married in 1926 to one Verna Spencer and was and is still the lawful husband of said Verna Spencer, having had nine children as the issue of said marriage. That thereafter one Mae Johnson came to live at the home of the defendant and he secured her agreement to enter into a marriage in accordance with the Fundamentalists' belief in the doctrines and teachings of the Mormon Church and that he lived with her, the said Mae Johnson, as man and wife, at the same time he was living with and supporting his legal wife, and that in July 1943, he transported the said Mae Johnson from the State of Utah to the State of Arizona and there lived with her as man and wife.

In the Chatwin, Zitting and Christensen case, No. 14481, it is charged that the defendants inveigled and decoyed one Dorothy Wyler, a minor child of the age of fifteen years, and caused her to be transported from the State of Utah to the State of Arizona. In the stipulation of facts it appears that the government would have offered proof that the defendant, Chatwin, approached the parents of the girl, Dorothy Wyler, with regard to her becoming a housekeeper; that said girl was then about fourteen years of age, backward in school, and had a mental age of about seven years and two months; that while so working in the home of the defendant Chatwin she was taught the doctrine of plural marriage to which she became converted, and entered into a plural marriage with the defendant Chatwin and that thereafter the defendants convinced the said Wyler that she should go to Mexico to be married legally to the said Chatwin and, in pursuance to such design, she was transported and caused to be transported by the defendants from the State of

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Utah to Juarez, Mexico, where she and the defendant went through a purported marriage ceremony and thereafter she was transported to Short Creek, Arizona, all of which transportation was without the consent and against the wishes of the parents of the said Dorothy Wyler and while she was under the authority of the Juvenile Court...

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