Caballero v. Hudspeth

• Decision Date: 30 August 1940
• Docket Number: No. 2108.,2108.
• Citation: 114 F.2d 545
• Parties: CABALLERO v. HUDSPETH, Warden.
• Court: U.S. Court of Appeals — Tenth Circuit

114 F.2d 545 (1940)

CABALLERO v. HUDSPETH, Warden.

No. 2108.

Circuit Court of Appeals, Tenth Circuit.

August 30, 1940.

Norma L. Comstock, of Denver, Colo., for appellant.

Summerfield S. Alexander, U. S. Atty., and Homer Davis, Asst. U. S. Atty., both of Topeka, Kan., for appellee.

Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.

HUXMAN, Circuit Judge.

This is an appeal from an order of the trial court denying petitioner's application for a writ of habeas corpus. On May 8, 1937, an indictment was returned against petitioner in the District Court of the United States for the District of Colorado, charging him in two counts with violation of the White Slave Traffic Act, 18 U.S.C.A. § 398. On June 7, 1937, petitioner withdrew his former plea of not guilty and entered a plea of guilty to both counts of the indictment. He was sentenced to serve a term of imprisonment of three and one-half years on each of the two counts, the sentences to run consecutively. On July 20, 1937, petitioner was delivered into the custody of the appellee.

Petitioner contends that both counts of the indictment charge but a single offense. It is his theory that no matter how many unlawful purposes he had in mind at the time he instigated the unlawful transportation, the gist of the offense is the unlawful transportation, and only one crime was committed.

18 U.S.C.A. § 398 provides: "Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce, or in any Territory or in the District of Columbia, 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 became a prostitute or to give herself up to debauchery, or to engage in any other immoral practice; or who shall knowingly procure or obtain, or cause to be procured or obtained, or aid or assist in procuring or obtaining, any ticket or tickets, or any form of transportation or evidence of the right thereto, to be used by any woman or girl in interstate or foreign commerce, or in any Territory or the District of Columbia, in going to any place for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent or purpose on the part of such person to induce, entice, or compel her to give herself up to the practice of prostitution, or to give herself up to debauchery, or any other immoral practice, whereby any such woman or girl shall be transported in interstate or foreign commerce, or in any Territory or the District of Columbia, shall be deemed guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $5,000, or by imprisonment of not more than five years, or by both such fine and imprisonment, in the discretion of the court."

Count 1 of the indictment charged that on or about the 10th day of April, 1937, petitioner did knowingly, wilfully, unlawfully and feloniously transport and cause to be transported and aid and assist in obtaining transportation for and in transporting in interstate commerce, from Omaha, Nebraska, to Denver, Colorado, one Elise Herbert, with the intent and purpose to induce, entice and compel her to engage in immoral practice, to-wit, prostitution. The second count is identical with the first, except that petitioner is charged with transporting Elise Herbert for the purpose of unlawfully cohabiting with him.

Whether a continuous transaction results in the commission of but a single offense or separate offenses is not dependent on the number of unlawful motives in the mind of the accused, but is determined by whether separate and distinct prohibited acts, made punishable by law, have been committed. In Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 714, 59 L.Ed. 1153, the Supreme Court said: "But the test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent and are such as are made punishable by the act of Congress."

The emphasis in § 398, 18 U.S.C.A., is upon transportation. It is made a crime to transport in interstate commerce any female person for any of the prohibited purposes set out in the section. That the gist of the offense is transportation is indicated by the pronouncement of the Supreme Court in those cases in which it has considered the act. In Hoke v. United States, 227 U.S. 308, 320, 33 S.Ct. 281, 283, 57 L.Ed. 523, 43 L.R.A., N.S., 906, Ann.Cas. 1913E, 905, the court said: "What the act condemns is transportation obtained or aided, or transportation induced, in interstate commerce, for the immoral purposes mentioned."

In Athanasaw v. United States, 227 U.S. 326, 332, 33 S.Ct. 285, 287, 57 L.Ed. 528, Ann.Cas.1913E, 911, the Supreme Court stated that: "The language of the statute is directed against the transportation `of any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose * * *.'"

In Wilson v. United States, 232 U.S. 563, 571, 34 S.Ct. 347, 350, 58 L.Ed. 728, the court again had under consideration this statute, and said: "It is argued that the end and object of the act is to prevent immorality and...