Ex parte Lair, 1,091.

CourtUnited States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
Citation177 F. 789
Docket Number1,091.
PartiesEx parte LAIR.
Decision Date30 March 1910

177 F. 789

Ex parte LAIR.

No. 1,091.

United States District Court, D. Kansas, First Division.

March 30, 1910


[177 F. 790]

J. D. Brown and Marshall Woodworth, for petitioner.

J. S. West, Asst. U.S. Atty.

PHILIPS, District Judge.

The petitioner was indicted in the United States District Court for the Northern District of Illinois, in December, 1908, for violating the 'Act of Congress prohibiting the importation into the United States of any alien woman or girl for the [177 F. 791] purpose of prostitution, and for holding such alien for any such purpose in pursuance of such illegal importation,' 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. [177 F. 792]

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,...

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4 practice notes
  • U.S. v. Hankish, No. 73-1926
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 17, 1974
    ...reluctant to construe federal crimes an continuing offenses in the absence of special statutory language. For example, in Ex Parte Lair, 177 F. 789 (D.Kan.1910), rev'd on other grounds, 195 F. 47 (8th Cir. 1912), cert. denied, 229 U.S. 609, 33 S.Ct. 464, 57 L.Ed. 1350 (1913), and United Sta......
  • United States v. Lair, 3,497.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 27, 1912
    ...The writ was issued, to which the warden of the penitentiary made due return, and upon the hearing thereof the defendant was discharged. 177 F. 789. The government prosecutes this appeal. The indictment upon which the defendant was convicted was returned December 15, 1908, and is in four co......
  • Walsh v. Archer, No. 7518.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 22, 1934
    ...Appeals for the Eighth Circuit had before it an appeal by the United States from an order of the District Court for the District of Kansas (177 F. 789) in an habeas corpus proceeding discharging petitioner Lair and declaring the judgment against him to be void, "for the reasons that the cou......
  • United States v. Krsteff, 13,064.
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • January 13, 1911
    ...fourth counts are controlled by the decisions in Keller v. U.S., 213 U.S. 138, 29 Sup.Ct. 470, 53 L.Ed. 737, and in Ex parte Lair (D.C.) 177 F. 789. They argued that the reasons laid down in these cases, the holding of the alien woman in this district, and the maintaining, controlling, and ......
4 cases
  • U.S. v. Hankish, No. 73-1926
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 17, 1974
    ...reluctant to construe federal crimes an continuing offenses in the absence of special statutory language. For example, in Ex Parte Lair, 177 F. 789 (D.Kan.1910), rev'd on other grounds, 195 F. 47 (8th Cir. 1912), cert. denied, 229 U.S. 609, 33 S.Ct. 464, 57 L.Ed. 1350 (1913), and United Sta......
  • United States v. Lair, 3,497.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 27, 1912
    ...The writ was issued, to which the warden of the penitentiary made due return, and upon the hearing thereof the defendant was discharged. 177 F. 789. The government prosecutes this appeal. The indictment upon which the defendant was convicted was returned December 15, 1908, and is in four co......
  • Walsh v. Archer, No. 7518.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 22, 1934
    ...Appeals for the Eighth Circuit had before it an appeal by the United States from an order of the District Court for the District of Kansas (177 F. 789) in an habeas corpus proceeding discharging petitioner Lair and declaring the judgment against him to be void, "for the reasons that the cou......
  • United States v. Krsteff, 13,064.
    • United States
    • United States District Courts. 7th Circuit. Southern District of Illinois
    • January 13, 1911
    ...fourth counts are controlled by the decisions in Keller v. U.S., 213 U.S. 138, 29 Sup.Ct. 470, 53 L.Ed. 737, and in Ex parte Lair (D.C.) 177 F. 789. They argued that the reasons laid down in these cases, the holding of the alien woman in this district, and the maintaining, controlling, and ......

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