Hamel v. United States

• Decision Date: 01 June 1943
• Docket Number: No. 9393.,9393.
• Citation: 135 F.2d 969
• Parties: HAMEL v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

135 F.2d 969 (1943)

HAMEL v. UNITED STATES.

No. 9393.

Circuit Court of Appeals, Sixth Circuit.

June 1, 1943.

John A. Baxter, of Detroit, Mich., for appellant.

Louis M. Hopping, of Detroit, Mich. (John C. Lehr, of Detroit, Mich., on the brief), for appellee.

Before HICKS, SIMONS, and ALLEN, Circuit Judges.

SIMONS, Circuit Judge.

The appellant was convicted in a trial to a jury upon an indictment charging him with violation of § 4 of the Immigration Act of February 5, 1917, 8 U.S.C.A. § 138. That section, in terms similar to the so-called White Slave Law, Act of June 25, 1910, 18 U.S.C.A. § 397 et seq., forbids the transportation of an alien woman into the United States for prostitution or for any other immoral purpose. While no element of commercial vice attended the transaction, the appellant, upon conviction, was sentenced to a term of six years in a penitentiary and fined the sum of $3000.

The evidence discloses that illicit relations took place between the appellant and Emily Kosko, the complaining witness, in Windsor, Ontario, and in Detroit, and that upon a number of occasions the young woman was brought to Detroit in the appellant's car. According to her evidence, consent to the relationship was based upon an express agreement of marriage. A controversy arose, however, as to its date, and the young woman, disappointed at postponements contrary to her wish, notified government agents of the relationship and transportation and thus brought about the investigation which resulted in indictment and trial.

The appellant was arraigned on October 16, 1942, and the case called for trial six days later, on October 22. On that date the appellant's attorney sought a continuance of six days, informing the court that between arraignment and trial he had been engaged in other courts and so unable to prepare a defense, and that the night before he had been apprised of certain facts that made it necessary, in order that he might adequately represent the appellant, to go to Gary, Indiana, to examine certain public records there. His motion was overruled. During the trial he learned for the first time that the appellant had been indicted upon what purported to be a confession made to an immigration inspector, and that the woman in the case had not been called as a witness before the Grand Jury. He promptly moved to quash the indictment on the ground that it had been reached upon inadequate and insufficient evidence. This motion was likewise overruled.

The appeal raises a number of questions which include abuse of discretion in refusing request for reasonable continuance seasonably made, and the invalidity of an indictment based upon hearsay, without evidence of the single competent and material witness to the crime charged. We need not at this time pass upon them, in view of circumstances presently to be disclosed.

In argument upon the appeal it was represented to us, without denial, that at the trial records were introduced purporting to show the married status of the defendant at the time of the alleged offense. From these the inference was urged both upon court and jury that the promise of marriage was but a sham since the defendant was legally incapable of redeeming it. It was also asserted, without contradiction, that the purpose of counsel in seeking a continuance was to examine records in Gary, Indiana, so as to locate and produce for the trial evidence of a decree of divorce obtained by the defendant's wife. Finally, it is brought to our attention, again without contradiction, that since conviction and sentence the defendant and Emily Kosko were legally married.

It thus appears that two material and important facts bearing upon the case, were not presented to court or jury, the one relating to the nature of the alleged immorality which is an essential element of the offense charged, and the other bearing upon the degree of turpitude which was an...