Kinser v. United States

• Decision Date: 29 March 1916
• Docket Number: 4502.
• Citation: 231 F. 856
• Parties: KINSER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

231 F. 856

KINSER v. UNITED STATES.

No. 4502.

United States Court of Appeals, Eighth Circuit.

March 29, 1916

Edward E. Wagner, of Sioux Falls, S.D. (John E. Tipton, of Geddes S.D., and Gamble, Wagner & Danforth, of Sioux Falls, S.D., on the brief), for plaintiff in error.

Robert P. Stewart, U.S. Atty., of Deadwood, S.D. (Edmund W. Fiske and George Philip, Asst. U.S. Attys., both of Sioux Falls S.D., on the brief), for the United States.

Before HOOK and SMITH, Circuit Judges, and REED, District Judge.

SMITH Circuit Judge.

The defendant, William C. Kinser, was indicted under White Slave Act June 25, 1910, c. 395, 36 Stat. 825 (Comp. St. 1913 Secs. 8812-8819). The indictment was in four counts. The defendant was tried and convicted on the second count, and acquitted upon the others, and, having been sentenced on the second count, brings error.

Count 2 of the indictment charged that the defendant--

'did knowingly, willfully, and feloniously cause to be transported in interstate commerce from Sioux City, in the state of Iowa, to and into Geddes, in the state of South Dakota, upon and over the route of the Chicago, Milwaukee & St. Paul Railway Company, a corporation, then and there being a common carrier, operating a line of railway as such and engaged in interstate commerce between the said Sioux City, in the state of Iowa, and the said Geddes, in the state of South Dakota, one certain woman, to wit, Frances Wilmott, with the intent and purpose then and there on the part of him, the said William C. Kinser, to induce, entice, and compel her, the said Frances Wilmott, at said Geddes, in the state of South Dakota, to become a prostitute and to give herself up to debauchery and to engage in other immoral practices.'

Without reference for the present to whether all of the evidence was admissible, it showed that the defendant was conducting a hotel at Geddes, S.D., known as the Padley Hotel. The latter part of July, 1914, he either wrote or telephoned to the Fritz Stavrum Employment Agency at Sioux City to send him a cook and chambermaid. The agency sent both employes, the chambermaid being Mrs. Frances Wilmott. An employe of the employment agency bought a ticket for Mrs. Wilmott from Sioux City, Iowa, to Geddes, S.D., over the line of the Chicago, Milwaukee & St. Paul Railway, and she traveled on that ticket to Geddes. After her arrival in Geddes the defendant refunded the expense of her ticket to the employment agency. She testified that about 11 o'clock in the forenoon of her second day at Geddes Mr. Kinser came to her in room No. 11 and said:

''I have a couple of live wires down stairs, if you think you can handle them.' I said, 'I don't quite catch your meaning.' He said, 'You can see by the hotel that I am not doing business enough here to pay you wages;' he says to me, 'If you want extra money, you will have to get your money from the men;' and he went on and told me the price that I was to charge, providing that I did, and he said it would be $2 a trick for a single trick or $5 for the whole night. He said to keep the money up to $6 a week for myself; the house was to get a dollar out of every trick I turned, but I was to keep the dollar until I had taken in my $6. He said he himself would send up men to my room, the ones he wanted in particular-- traveling men. After this statement by Mr. Kinser about 1 o'clock that day men came to my room and I had intercourse with them. I had no funds of my own. I was there just five weeks, and the same practice was engaged in, not very often. I got money and left there. These men paid me according to the prices fixed by Mr. Kinser. Mr. Kinser did not pay me any wages for services rendered for him for the five weeks as chambermaid. The defendant said, if I was in fear that I was going to get into trouble, to tell him, and he would help me out.'

The first assignment of error is with reference to the admission of certain evidence by the witness Ola Meyers, but just before she left the stand the court struck all her testimony from the record, except the statement that she received a check and its identification and turned it over to Mr. Stavrum. Her evidence was not specially prejudicial, and this order striking it out was sufficient in any event to cure any error that had been made in admitting it.

The second assignment is that Fritz Stavrum was asked:

'Q. And do you remember, after she went, as to who paid her fare, if you know?' To which he replied:

'A. Mr. W. C. Kinser paid her fare.'

Defendant moves to strike out this answer as not responsive to this question, no foundation being laid for it, the means of knowledge is not shown.

'The Court: I thing he may answer. You can test him with cross-examination.'

Upon its face the question propounded to this witness was not subject to the objection made, and no cross-examination of him revealed otherwise, and no motion of a similar character was made at the end of the cross-examination.

Charles W. Bundy was called by the defendant to impeach Frances Wilmott. He testified to a conversation with her and was then interrogated on cross-examination whether he had communicated this conversation to Kinser and just what had been so communicated. Permitting this cross-examination is assigned as error in the twenty-second assignment. We see no objection to the line of cross-examination, but at its conclusion the court, upon its own motion, instructed the jury that the testimony was incompetent, except that he did communicate the conversation with the girl to Kinser, and stated that any further answers were entirely incompetent to the development of the testimony,

'And your attention is called to the fact that something was mentioned in that conversation with reference to pulling the house. All of that is stricken from the record, and you are admonished not to consider it, and to exclude it entirely from the consideration of this witness' testimony.'

This certainly cured the error, if any, in the admission of the evidence.

The government in chief called Esther King, who was sent by the Fritz Stavrum Employment Agency from Sioux City to the Padley Hotel at Geddes to act as a waiter, and sought to show by her that shortly after her arrival she was instructed substantially as Mrs. Wilmott claimed she was, but the court sustained an objection. At the close of the government's case in chief the defendant filed a motion for a directed verdict for the following, among other, grounds:

'4. There is no evidence in this case that the defendant procured or furnished transportation for said Frances Wilmott to go in interstate commerce from Sioux City, Iowa, to Geddes, S.D., with the intention that she should engage in prostitution or other immoral practices.'

This motion was overruled. The court allowed Esther King in rebuttal to testify to the matter sought to be elicited in chief, that she yielded to the defendant's solicitations and acted as a prostitute at the hotel. Darlene Dayoe was also called and testified to a similar experience. Bertha Townsend was called and...