57 F.2d 822 (1st Cir. 1932), 2637, Malaga v. United States

Docket Nº:2637.
Citation:57 F.2d 822
Case Date:April 07, 1932
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 822

57 F.2d 822 (1st Cir. 1932)




No. 2637.

United States Court of Appeals, First Circuit.

April 7, 1932

Page 823

Appeal from the District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge.

William H. Lewis, of Boston, Mass. (Matthew L. McGrath, of Boston, Mass., on the brief), for appellant.

John W. Schenck, Asst. U.S. Atty., of Boston, Mass. (Frederick H. Tarr, U.S. Atty., and Hubert C. Thompson, Asst. U.S. Atty., both of Boston, Mass., on the brief), for the United States.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

WILSON, Circuit Judge.

The appellant was convicted in the District Court of Massachusetts under section 2 of the White Slave Traffic Act (18 USCA § 398), and appealed to this court.

So much of the section of the statute, under which the appellant was indicted, as applies to this case, reads as follows: 'Any person who shall knowingly transport or cause to be transported, * * * in interstate or foreign commerce, * * * any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral how deep the tones were when he was speaking about his client, how fierce the tones

The appellant was indicted for unlawfully, willfully, knowingly, and feloniously transporting one Elizabeth Martin from Butztown in Pennsylvania to Boston, Mass., 'for the purpose of prostitution, and with the intent

Page 824

and purpose to induce, entice or compel such woman to become a prostitute and to engage in other immoral practices.'

The appellant assigned as errors:

1. The District Court erred in the admission and exclusion of certain evidence at the trial, as more particularly appears by his bill of exceptions.

2. The District Court erred in refusing to make certain requests and rulings, as appears also by his bill of exceptions.

3. The District Court erred in its instructions given to the jury, as appears by his bill of exceptions.

The exceptions covered by the assignment of errors and on which the appellant chiefly relies as disclosing prejudicial error are: (1) The admission of an alleged confession; (2) the admission of certain evidence of a physician who testified to treating the Martin girl; (3) the exclusion of certain evidence as to places where a witness by the name of Margaret Wheeler 'worked'; (4) the refusal to give certain instructions requested by counsel for the appellant as to the proof necessary for conviction under the indictment; and (5)(a) to so much of the judge's charge as related to the admission of alleged confessions; (b) to that part of the judge's charge in which he stated that the defendant told a string of lies; (c) to that part of the judge's charge in which he stated that the appellant married the Martin girl to prevent her testifying against him; (d) to that part of the judge's charge in which he said at the close: 'If you agree with me, you will find this man guilty. If, however, you do not agree with me, it is your right and duty to find him not guilty.'

The evidence showing a violation of the provisions of the White Slave Traffic Act was chiefly in the form of admissions to several police officers by whom the appellant was interviewed as to his knowledge of the murder of one Samuel Reinstein in a Boston hotel, corroborated to some extent by the witness Margaret Wheeler. We think the testimony of the police officers was properly admitted, and the question of whether it was voluntarily made was, under the federal rule, properly submitted to the jury. Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090; Hale v. United States (C. C. A.) 25 F.2d 430, 438.

In view of the conclusions hereafter reached, it is unnecessary to comment on the exception to the admission of the testimony of a doctor who treated the Martin girl and sent her to a hospital for an operation of some kind. Against objection the government did not offer proof of the nature of the operation. Counsel for the government attempted to comment on it, apparently forgetting getting the evidence was not offered, but was reminded by the court at the time that no such testimony was in the case.

The exceptions to the admission of the testimony of the Wheeler girl and to the exclusion of the answers to certain inquiries of her, and also to the refusal of the trial judge to give the instruction to the jury requested by the appellant's counsel relating to the admission of the alleged confession, and the definition of reasonable doubt, are without merit; but the refusal to give certain requested instructions as to the proof necessary to convict under the indictment raises more serious questions, and, in view of the charge in the indictment and of the evidence, we think the requested instructions should have been given.

It appears from the admissions by the appellant at the interviews at the police station that he lived in Easton, Pa.; that he had met there the young woman Elizabeth Martin, familiarly known as Betty Martin, and had lived there with her as man and wife for nearly a year; that she was 'in the life' there, as it is termed by those engaged in the practice of prostitution; that in June, 1929, they left Easton for Boston in an automobile, stopping over night at Bridgeport, Conn., where they registered as man and wife, and after arriving in Boston they registered as man and wife at the Arlington Hotel, where they continued their illicit relations; that some time after arriving in Boston, he met on the street an acquaintance by the name of Schwartz, whom he had met in Easton, and asked him where the Martin girl could get into a house of prostitution in Boston where she could 'work,' as the practice is termed by those engaged in it, and was referred to a house on Canton street and another on Dover street; he admitted taking her to one of these places each morning and calling for her in his car at about 11.30 at night; that her earnings in this business were from $50 to $75 per week, which she brought and left on the dresser in their room, though he denied taking any of it.

This practice continued until about the time of the Reinstein murder, when they returned to Easton. At some time prior to the trial of the appellant in the District Court, it appears they were married, though the record does not specifically disclose when the

Page 825

marriage took place. According to his admission, they were not married when they came to Boston in June, 1929, nor when he appeared before the assistant district attorney in September. The only reference to their marriage is in the testimony of one of the police officers, who in cross-examination testified that he saw a marriage certificate shown to the judge in the state court, presumably at a hearing the following October.

While there has been no decision by the Supreme Court directly interpreting the act in this respect, we think that so much of section 2 as is quoted above describes but one offense, viz., the transportation of women and girls in interstate commerce for any or all of the purposes enumerated therein. The offense, therefore, may be charged by alleging that the transportation was for two or more of the purposes set forth in the statute, if alleged in the conjunctive, without being objectionable on the ground of duplicity. Blain v. United States (C. C. A.) 22 F.2d 393; Bishop's New Crim. Pro. (4th Ed.) Vol. 1, § 436; United States v. Brand (D. C.) 229 F. 847; Ackley v. United States (C. C. A.) 200 F. 217; Crain v. United States, 162 U.S. 625, 636, 16 S.Ct. 952, 40 L.Ed. 1097; Hays v. United States, 242 U.S. 470, 484, 486, 37 S.Ct. 192, 194, 61 L.Ed. 442, L. R. A. 1917F, 502, Ann. Cas. 1917B, 1168. What constitutes prostitution and 'other immoral practices' is defined in United States v. Bitty, 208 U.S. 393, 28 S.Ct. 396, 52 L.Ed. 543.

The aim of the act is to prohibit interstate transportation of women and girls for any immoral purpose associated with sexual intercourse, and not to punish the offender for the consummation of the purpose for which the transportation is undertaken, which is solely within the powers of the states. Hoke v. United States, 227 U.S. 308, 321, 33 S.Ct. 281, 57 L.Ed. 523, 43 L. R. A. (N. S.) 906, Ann. Cas. 1913E, 905. It is the transportation in interstate commerce that gives the prohibited acts the status of a federal offense. It is not necessary to prove that any of the purposes were consummated, if the intent with which the transportation is undertaken is within the prohibition of the Act. United States v. Brand, supra, page 850 of 229 F.; Rizzo v. United States (C. C. A.) 275 F. 51.

As to whether interstate transportation for the purpose of inducing or enticing a woman to engage in 'immoral practices,' if that were the sole purpose alleged, sets forth with sufficient particularity an offense under the statute, we think it is unnecessary to decide in this case, as no objection on that ground was raised to the introduction of the evidence that was received in support of this particular allegation, nor to the form of the indictment, and the allegation in the form set forth in the indictment is not supported by the evidence. But see Hays v. United States, supra, in which case the respondent was charged under one count 'with intent then and there to induce and coerce the said woman, and intending that she should be induced and coerced to engage in prostitution, debauchery, and other immoral practices'; and under a second count it was alleged 'that on the same date the defendants persuaded, induced, enticed, and coerced the same woman to be...

To continue reading