Ex parte Lair
| Decision Date | 30 March 1910 |
| Docket Number | 1,091. |
| Citation | 177 F. 789 |
| Parties | Ex parte LAIR. |
| Court | U.S. District Court — District of Kansas |
J. D Brown and Marshall Woodworth, for petitioner.
J. S West, Asst. U.S. Atty.
The petitioner was indicted in the United States District Court for the Northern District of Illinois, in December, 1908, for violating the etc.
The first count of the indictment charges, in substance, that the petitioner, under various aliases, in connection with one Mrs. Henry Lair, at Chicago, in the Eastern division of the Northern district of Illinois, unlawfully, willfully, and knowingly imported into the United States for the purpose of prostitution, and unlawfully, willfully, and knowingly did hold, to wit, from the 1st day of January, 1906, until the 15th day of July, 1907, in pursuance of such illegal importation, in their certain house of prostitution there situate, etc., in said city of Chicago, for the purpose of prostitution, a certain alien woman named Marie Peuroy, who was then a citizen of the Republic of France, within three years after she had entered the said United States, and that she came to and entered the said United States within three years prior thereto, against the peace and dignity, etc.
The second count charges that the petitioner in the year 1906 and from that time until the 15th day of July, 1907, at Chicago, in said district, unlawfully, knowingly, and willfully held for the purposes of prostitution, in pursuance of an illegal importation for the purpose of prostitution, in the house of prostitution at the designated street in said city, the said Marie Peuroy, who was then a citizen of the Republic of France, within three years after she had entered the said United States, and that she came to and entered said United States within three years prior thereto, etc.
The third count makes practically the same charge as the last respecting the taking and holding of said alien in the house of prostitution at Chicago; and further charges that at the time of the illegal importation and holding petitioner well knew that she was an alien woman, and a citizen of the Republic of France, and had entered the United States within three years prior thereto, etc.
The fourth count contains practically the same charge as the two preceding counts, except that it fixes the date between the 1st day of July, 1907, until the 15th day of July, 1907, and charges that they maintained, controlled, supported, and harbored in a certain house of prostitution in said city of Chicago the said Marie Peuroy, a citizen of the Republic of France, and that she came to and entered the United States within three years prior thereto, etc.
To this indictment the petitioner entered the plea of nolo contendere. Whereupon the court, as the minutes therein recite, heard the evidence on the part of the United States, and found the defendant guilty as charged in the indictment, and on the 1st day of February, 1909, the court imposed a general sentence upon all four of said counts of the indictment, sentencing him to two years' imprisonment in the United States penitentiary at Ft. Leavenworth, Kan. (and to pay a fine of $2,500), where he has been confined in execution of said sentence since the 12th day of February, 1909. The petition for discharge under the writ of habeas corpus is predicated of the contention that said judgment was void, for the reasons that the act of Congress upon which the indictment was predicated is invalid under the Constitution of the United States, and because the District Court of the United States for the Northern District of Illinois had no jurisdiction over the subjectmatter.
It is conceded on the part of the United States attorney, representing the government, that, in so far as the last three counts of the indictment are concerned, the judgment or sentence is invalid and void, as held by the Supreme Court in the cases of Keller v. United States and Ullman v. United States, 213 U.S. 138, 29 Sup.Ct. 470, 53 L.Ed. 737, for the reason that the offense against public morals, for holding a person in a house of prostitution, pertains to the police power of the state, and it is not within the competency of Congress to regulate or prohibit the same.
The judgment is sought to be maintained by the United States attorney on the first count of the indictment, claimed to be valid, invoking the well-recognized rule of law:
'That in any criminal case a general verdict and judgment on an indictment or information containing several counts cannot be reversed on error, if any one of the counts is good and warrants the judgment, because, in the absence of anything in the record to show the contrary, the presumption of law is that the court awarded sentence on the good count only. ' Claassen v. United States, 142 U.S. 140, 12 Sup.Ct. 169, 35 L.Ed. 966.
Waiving any discussion as to whether this rule applies to the instance of joining in a single count two distinct offenses contained in separate clauses of the same section of the statute, one of which is invalid, as if never written, and the other is valid, on which only a general judgment is rendered, and when the evidence that would be sufficient to sustain the one cause would wholly fail to support the other, we will proceed to determine whether or not this judgment is absolutely void.
From the indorsement on the back of the indictment it appears that it was predicated of the act of March 3, 1903, and the act of February 20, 1907. Section 3 of the former act (Act March 3, 1903, c. 1012, 32 Stat. 1214) is as follows:
'That the importation into the United States of any woman or girl for the purposes of prostitution is hereby forbidden; and whoever shall import or attempt to import any woman or girl into the United States for the purposes of prostitution, or shall hold or attempt to hold, any woman or girl for such purposes in pursuance of such illegal importation shall be deemed guilty of a felony, and, on conviction therof, shall be imprisoned not less than one nor more than five years and pay a fine not exceeding five thousand dollars.'
The corresponding section of the act of February 20, 1907 (34 Stat. 899, c. 1134 (U.S. Comp. St. Supp. 1909, p. 450)), is as follows:
'That the importation into the United States of any alien woman or girl for the purpose of prostitution, or for any other immoral purpose, is hereby forbidden; and whoever shall, directly or indirectly, import, or attempt to import, into the United States, any alien woman or girl for the purpose of prostitution, or for any other immoral purpose, or whoever shall hold or attempt to hold any alien woman or girl for any such purpose in pursuance of such illegal importation, or whoever shall keep, maintain, control, support, or harbor in any house or other place, for the purpose of prostitution, or for any other immoral purpose, any alien woman or girl, within three years after she shall have entered the United States, shall, in every such case, be deemed guilty of a felony, and on conviction thereof be imprisoned not more than five years and pay a fine of not more than five thousand dollars; and any alien woman or girl who shall be found an inmate of a house of prostitution or practicing prostitution, at any time within three years after she shall have entered the United States, shall be deemed to be unlawfully within the United States and shall be deported as provided by sections twenty and twenty-one of this act.'
By section 43 of the latter act the act of March 3, 1903, except section 34 thereof (which might properly be designated as 'alien' to the title and purposes of the act prohibiting the sale of intoxicating liquors within the limits of the capitol building of the United States), and all acts and parts of acts, were repealed. By section 44 this act of February 20, 1907,...
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