Bayless v. United States, 8598.

• Decision Date: 29 September 1966
• Docket Number: No. 8598.,8598.
• Citation: 365 F.2d 694
• Parties: Samuel Thomas BAYLESS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

365 F.2d 694 (1966)

Samuel Thomas BAYLESS, Appellant, v. UNITED STATES of America, Appellee.

No. 8598.

United States Court of Appeals Tenth Circuit.

September 2, 1966.

Rehearing Denied September 29, 1966.

Judd L. Black, Oklahoma City, Okl., for appellant.

John W. Raley, Jr., Oklahoma City, Okl. (B. Andrew Potter, U. S. Atty., with him on brief), for appellee.

Before MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.

MURRAH, Chief Judge.

This appeal is from a conviction and sentence on an indictment charging appellant with the unlawful transportation of a named woman in interstate commerce for purposes of prostitution and debauchery in violation of 18 U.S.C. § 2421.

The indictment is attacked as fatally duplicitous because it is said to charge two offenses, i. e. the unlawful transportation for purposes of prostitution and debauchery instead of prostitution or debauchery as the statute reads. But, "The law is settled that when a statute denounces several acts as a crime, an indictment or information drawn in the language of the statute is not duplicitous if all the acts are pleaded conjunctively in one count." Cordova v. United States, 10 Cir., 303 F.2d 454, 455.

It is contended that in any event the court erroneously refused to grant a bill of particulars to inform the appellant concerning the acts relied upon to prove the offense of debauchery. The trial court denied the bill with the observation that the term "debauchery" has a generally recognized and judicially defined meaning. In its instructions the court defined both "prostitution" and "debauchery" in simple and unmistakable language. The contention is clearly without merit.

No other error complained of here was raised on trial, but appellant's counsel desperately attempts to make a case by urging several matters as plain error affecting the substantial rights of the appellant which he contends were not noted or preserved due to lack of effective assistance of trial counsel. This, of course, is a serious imputation reflecting on both court and counsel which should not be lightly made or dismissed without notice here.

The record shows that after indictment on June 2, 1964, and a plea of not guilty the next day, the case was set for jury trial on the following September 17. Before the trial date, however, on petition of retained counsel, the court entered an order for psychiatric examination and the case was stricken from the September calendar. The December 8 setting was vacated on request of the government due to the unavailability of a witness. The March 8, 1965, setting was continued on motion of appellant, and a July 12, 1965, setting was vacated and retained counsel was permitted to withdraw without objection because he had become Assistant County Attorney. The application to withdraw stated that it was the applicant's understanding that appellant had made arrangements with Mr. Judd L. Black, his present counsel, to defend him when the cause was again set for trial. The...