Kelly v. United States

• Decision Date: 10 January 1952
• Docket Number: No. 10639.,10639.
• Citation: 194 F.2d 150,90 US App. DC 125
• Parties: KELLY v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

90 US App. DC 125, 194 F.2d 150 (1952)

KELLY v. UNITED STATES.

No. 10639.

United States Court of Appeals District of Columbia Circuit.

Argued April 16, 1951.

Decided January 10, 1952.

James J. Laughlin, Washington, D. C., for appellant.

Emory W. Reisinger, II, Asst. U.S. Atty., Washington, D. C., with whom George Morris Fay, U. S. Atty. at the time the brief was filed, and Joseph M. Howard, Asst. U.S. Atty., Washington, D. C., were on the brief, for appellee.

Charles M. Irelan, who was appointed U.S. Atty. subsequent to the argument in this case, and Jerome Powell, Asst. U.S. Atty., Washington, D. C., also entered appearances for appellee.

Before CLARK, PRETTYMAN and PROCTOR, Circuit Judges.

PRETTYMAN, Circuit Judge.

In an information filed by the United States Attorney appellant was charged with unlawfully inviting one Frank N. Manthos to accompany him for a lewd and immoral purpose. The offense charged is by statute¹ a misdemeanor in this jurisdiction. Trial was had before a judge without a jury in the Municipal Court. Appellant was convicted and was sentenced to pay a fine of $75.00 or, in default thereof, to spend sixty days in jail. The Municipal Court of Appeals affirmed. We granted the petition for appeal, because the case presents a question of general public importance in the administration of the criminal law, upon which there has been no decision by this court.

As to some of the facts there is no dispute. Police officer Manthos, in plain clothes, was in Franklin Park on the evening in question for the purpose of making arrests such as this, — "vice duties". Franklin Park is a downtown park in Washington, a full city block square. A fellow officer, Winemiller by name, was also there "to make sure he Manthos was not injured". The two were seated on different benches. There were quite a few people in the Park, although it was about midnight on a Friday night. Kelly came into the Park, walked past the officers and in a few minutes came back and sat for a short time on a bench near them. Thereafter a conversation occurred between Manthos and Kelly. There is a dispute as to who started the conversation, but both men said they talked about Manthos's being a salesman of plastics (in which Kelly had done some research) and about his being from Atlanta, Georgia (where Kelly had once lived); about the weather; about the difficulty of getting a drink after hours in Washington; and about the fact that Kelly had some liquor in his apartment. The culmination of the conversation is the precise crux of the case before us, and that is in dispute. At any rate the two men walked to Kelly's car, parked on Thirteenth Street alongside the Park. Manthos placed Kelly under arrest and whistled for Winemiller, who then joined them. Winemiller had heard none of the preceding conversation. Kelly protested the arrest, denounced it as fantastic, and said he would make a test case of it and would sue the District Government and the officers in a "tort suit". Kelly is a Standard Analyst in the Public Health Service and was brought from the field service to headquarters here about three years before these events.

Concerning the beginning of the conversation Manthos said that Kelly walked up to his bench, asked what time it was, sat down, said it was a beautiful night, inquired where he was from, etc., etc. Kelly, on the other hand, said that, as he walked past Manthos, Manthos said "Hi"; that he (Kelly) stopped to see whether it was someone he knew; that Manthos said "Beautiful evening"; and that, since he (Kelly) was "feeling congenial" by reason of two or three drinks, they fell into conversation.

As to the culmination of the conversation, Manthos's version was that Kelly proposed that they go to his (Kelly's) apartment for an act of perversion, which he described. Kelly, on the other hand, said that Manthos, after the story about selling plastics, complained about lack of friends and wanting a drink and suggested that Kelly might have liquor at his apartment; that he (Kelly) said he did have a couple of drinks in a bottle at his house and that if Manthos cared to come over he would be welcome to a drink.

Kelly testified that he had had a date with a young lady that night; that they had "about three drinks" at his apartment; and that after taking her home he decided to go to a "White Tower" (a chain of small, allnight, counter restaurants) for something to eat, parked his car, and started through the Park to the White Tower on the opposite corner. He said he missed his car keys, started back to look for them, found them in his shirt pocket, and sat down on a nearby bench in momentary relief. When he resumed his walk the episode with Manthos occurred.

Three facts apart from the main thread of events are important. First: Kelly shared his apartment with a roommate. At the time of the events we have described, the roommate was at the apartment, and Kelly knew he was there because they had met as Kelly left before the Park incident. Second: Manthos on the witness stand unequivocally denied that he had told any officer at the Probation Office that there had been complaints about Kelly at the Public Health Service. An officer in the Probation Office testified unequivocally that Manthos had come to that Office and made that statement. Third: Although Manthos said he could not recall how many similar arrests he had made in Franklin Park that night, Winemiller said that Manthos had made six such arrests that night.

Ten character witnesses, most of them fellow workers in the Public Health Service, testified in Kelly's behalf.

The offense charged consists of a few spoken words, a verbal invitation to do a perverted act. Only two persons know whether the words were spoken. The officer says they were: Kelly says they were not. The rest of the evidence is circumstantial.

The first question before us is whether a judgment of conviction for this offense can be rendered or, if rendered, can be sustained upon the testimony of one witness, unless corroborated as to the offense itself, i.e., as to the utterance of the invitation. This is the question by reason of which we granted this appeal.

It is established that we have authority to prescribe for this jurisdiction rules relating to proof in criminal cases.² Indeed, there is upon us the responsibility for "Matters relating to law enforcement in the District".³ We have in the past established such rules. For example, in respect to rape, we have held that the testimony of the prosecutrix must be corroborated by evidence as to the circumstances surrounding the parties at the time;⁴ we have held that if a drug addict is a prosecution witness the accused is entitled as of right to an instruction that such evidence must be viewed with suspicion and received with great caution;⁵ and we have held that an accused is entitled as of right to an instruction that the testimony of an accomplice must be received with suspicion and the greatest caution.⁶

In other cases we have not prescribed rigid rules but have advised and cautioned the trial courts. For example, in Cratty v. United States,⁷ in which the testimony of an informer was under consideration, we held, in an opinion by Chief Judge Stephens, that, even though a request for the instruction was not made and, therefore, it was not reversible error to fail to give it, "the trial court would be well advised to caution the jury as to its dependability".⁸ So there is ample precedent for a ruling by this court that in certain cases the uncorroborated testimony of one witness will not support a conviction;⁹ or for a peremptory requirement that an instruction that certain types of evidence must be viewed with suspicion and received with caution, must be given; or for a mere precautionary admonition to the trial courts as to the proper course in certain circumstances.

The case before us lies in a field in which our courts have traditionally been unusually skeptical toward the accusation. This has been true of all the so-called sex offenses. Lord Hale's epigram concerning a charge of rape was written in 1680. It is established that testimony asserting sodomy must be subjected to the most careful scrutiny.¹⁰ Blackstone had the following to say about it: "What has been here observed, especially with regard to the manner of proof, which ought to be more clear in proportion as the crime is the more detestable, may be applied to another offence, of a still deeper malignity; the infamous crime against nature, committed either with man or beast. A crime which ought to be strictly and impartially proved, and then as strictly and impartially punished. But it is an offence of so dark a nature, so easily charged, and the negative so difficult to be proved, that the accusation should be clearly made out: for, if false, it deserves a punishment inferior only to that of the crime itself."¹¹

Moreover, the courts have been realistic about the effects of a threat to accuse one of sodomy. Such a threat has been held repeatedly to be sufficiently equivalent to force and violence to constitute robbery if the threatened person parts with money because of the threat.¹² "So abominable is the crime, and so destructive is even the accusation of it, of all social right and privilege, that the law considers that the accusation is a coercion which men cannot resist. This seems to be the only case in which a threat to prosecute, will supply the place of actual force."¹³

It seems clear enough that a threat of an accusation of a verbal invitation to sodomy is as terrifying as a threat of accusation of sodomy itself; perhaps more so because even less susceptible of defense.

The public has a peculiar interest in the problem before us. The alleged offense, consisting of a few spoken words, may be alleged to have occurred in any public place, where any citizen is likely to be. They may be alleged to have been whispered, or to have occurred in the course of a most casual...