Hunter v. United States

• Decision Date: 08 February 1921
• Docket Number: 1796.
• Citation: 272 F. 235
• Parties: HUNTER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

272 F. 235

HUNTER v. UNITED STATES.

No. 1796.

United States Court of Appeals, Fourth Circuit.

February 8, 1921

[Copyrighted Material Omitted]

B. J Pettigrew, of Charleston, W.Va. (W. G. Barnhart and Horan &amp Pettigrew, all of Charleston, W. Va., on the brief), for plaintiff in error.

Lon H. Kelly, U.S. Atty., of Charleston, W.Va. (J. N. Kenna, Asst. U.S. Atty., of Charleston, W. Va., on the brief), for the United States.

Before KNAPP, Circuit Judge, and SMITH and WATKINS, District Judges.

WATKINS District Judge.

T. E. Hunter was tried and convicted in the District Court for the Southern District of West Virginia upon an information charging a violation of section 13 of the act of Congress approved May 18, 1917, known as the Selective Service Act (Comp St. 1918, Comp. St. Ann. Supp. 1919, Sec. 2019b). While not stated in separate counts, it was charged that within five miles of a naval ordnance plant of the United States he received and permitted to be received for immoral purposes certain persons, both men and women, into a place operated as a hotel or rooming house, and designated as the South Charleston Hotel, in the town of South Charleston, W. Va., and also that he then and there kept and set up a house of ill fame. The evidence involves transactions so foul and lewd as to forbid its being rehearsed with circumstantial detail in this opinion. It is to be regretted that a proper consideration of the assignments of error requires even a brief recapitulation of it. There are numerous assignments of error, but they may be grouped under only a few classifications. Hunter, who was defendant in the trial court, will, for convenience, be referred to in this opinion as the defendant.

The first assignments of error relate to the overruling of the demurrer and of the motion by defendant to quash the information. It is insisted that the information is bad for lack of definiteness, and that it contains a general charge, but fails to allege any specific offense at any specific place, or in fact any sufficient allegation upon which to base a verdict. There is no merit in this contention. The offense is set out in substantially the language of the act. The place is specifically alleged as having been the Charleston Hotel, in South Charleston, W. Va., and the defendant is charged with having set up and kept this hotel as a house of ill fame, and as having received and permitted to be received into it both men and women for immoral purposes; that is to say, for the purposes of lewdness, assignation, and prostitution. The defendant claims also that there was no allegation to connect him with the house in the capacity of proprietor or otherwise, although he was charged with having set up this hotel as a house of ill fame, and with being the keeper of it. It is immaterial whether he was the owner of the hotel, or its lessee, or one of the participants in its conduct, since, under section 332 of the Criminal Code (Comp. St. Sec. 10506), if he was guilty of the conduct charged in the indictment, he was liable as a principal in the crime. Rosencranz v. United States, 155 F. 38, 83 C.C.A. 634; Jin Fuey Moy v. United States (Dec. 6, 1920) 254 U.S. 189, 41 Sup.Ct. 98, 65 L.Ed. . . . .

It is contended, further, that a naval ordnance plant does not come within the purview of the statute. Counsel evidently overlooked the amendment of October 6, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 2813e), and the order of the Secretary of the Navy pursuant thereto under date of August 3, 1918, and the various rules and regulations promulgated by the President under this statute. These rules and regulations promulgated by the President and the order of the Secretary of the Navy became a part of the law under which the defendant was tried, and embraced the offense with which the defendant was charged.

It is further urged that an information is not the proper means of informing the accused of the crime with which he is charged. The Fifth Amendment to the Constitution provides that--

'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.'

It will be observed that this provision of the Constitution is limited expressly to capital or other infamous crimes. What is an infamous crime has been the subject of considerable discussion in opinions handed down by the various courts of the country, both state and national. The dividing line has sometimes, but not always, been held to be that between felonies and misdemeanors. The word 'crime' itself has been so distinguished from 'misdemeanor.' In the case of Ex parte Wilson, 114 U.S. 417, 5 Sup.Ct. 938, 29 L.Ed. 89, the court said:

'By the law of England, informations by the Attorney General, without the intervention of a grand jury, were not allowed for capital crimes, nor for any felony, by which was understood any offense which at common law occasioned a total forfeiture of the offender's lands, or goods, or both. 4 Bl.Com. 94, 95, 310. The question whether the prosecution must be by indictment, or might be by information, thus depended upon the consequences to the convict himself. The Fifth Amendment, declaring in what cases a grand jury should be necessary, and in effect affirming the rule of the common law upon the same subject, substituting only, for capital crimes or felonies, 'a capital or otherwise infamous crime,' manifestly had in view that rule of the common law, rather than the rule on the very different question of the competency of witnesses. * * * Within the last 15 years prosecutions by information have greatly increased, and the general current of opinion in the Circuit and District Courts has been towards sustaining them for any crime, a conviction of which would not at common law have disqualified the convict to be a witness.'

It is clear to our minds that the effect of the decisions of the courts generally is that a crime is not infamous unless it subjects one to the liability of punishment of death, or confinement in the state penitentiary, or to disqualification for holding office, or some other specific forfeiture, or disqualification not incident to ordinary misdemeanors. Since the adoption of the Criminal Code, which draws the dividing line between felonies and misdemeanors by designating as felonies all crimes which are punishable by imprisonment for more than a year, and as misdemeanors all other crimes, we conclude that all misdemeanors under the federal law may be tried upon information, unless there should be coupled with the punishment of imprisonment some specific provision making the particular misdemeanor infamous. There is no such provision in the statute under consideration. The limit of punishment for the crime with which the defendant here is charged is imprisonment for not more than one year, or a fine of not more than $1,000, or both. Indictment by a grand jury, therefore, was unnecessary. In re Fry (D.C. 1884) 3 Mackey, 135; United States v. Ebert, Fed. Cas. No. 15,019; United States v. Maxwell, Fed. Cas. No. 15,750; United States v. Shepard, Fed. Cas. No. 16,273; United States v. Waller, Fed. Cas. No. 16,634; United States v. Baugh (C.C.) 1 Fed. 785; United States v. Tureaud (C.C.) 20 F. 621; United States v. Cobb (D.C.) 43 F. 570; Rider v. United States, 149 F. 164, 79 C.C.A. 112; United States v. Camden Iron Works (D.C.) 150 F. 214, and 158 F. 561, 85 C.C.A. 585; Rosencranz v. United States, 155 F. 38, 83 C.C.A. 634; Renigar v. United States, 172 F. 646, 97 C.C.A. 172, 26 L.R.A. (N.S.) 683, 19 Ann.Cas. 1117; United States v. Thompson (D.C.) 202 F. 346; United States v. Wells (D.C.) 225 F. 320; Blanc v. United States, 258 F. 921, 169 C.C.A. 641; Brown v. United States, 260 F. 752, 171 C.C.A. 490; Goublin v. United States, 261 F. 5, 171 C.C.A. 601; Robertson v. United States (C.C.A.) 262 F. 948; United States v. Achen (D.C.) 267 F. 595; Mackin v. United States, 117 U.S. 348, 6 Sup.Ct. 777, 29 L.Ed. 909; Bannon & Mulkey v. United States, 156 U.S. 467, 15 Sup.Ct. 467, 39 L.Ed. 494; Schick v. United States, 195 U.S. 65, 24 Sup.Ct. 826, 49 L.Ed. 99, 1 Ann.Cas. 585.

A number of the assignments of error complain of the insufficiency of the evidence, and of error on the part of the court in not directing a verdict for the defendant. The first of these assignments is to the effect that there was no evidence that Hunter was proprietor of the house in question. In the evidence in chief it was shown that he was in charge of the premises, that he received applications for rooms and assigned lodgers thereto, that he showed them to their rooms and directed the chambermaid in charge of the rooms as to her duties, and when he was sworn on his own behalf stated that he had rented the premises, and in effect that he was running the place as its proprietor. In the course of the testimony, it was shown that one of the inmates of the hotel was a woman of notorious character, who had an apartment of four rooms, and that, upon the night in which the officers went to the hotel, certain acts of illicit intercourse took place in her rooms, and also one act of like character in another portion of the hotel. It was contended that this woman had rented these apartments before defendant leased the hotel, and had paid her rent up to the end of the month, and that defendant had neither knowledge of nor responsibility for her conduct. There was no evidence to contradict defendant's claim that he was to receive no rent from...