Lawrence v. United States

• Decision Date: 23 May 1947
• Docket Number: No. 11432.,11432.
• Citation: 162 F.2d 156
• Parties: LAWRENCE v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

162 F.2d 156 (1947)

LAWRENCE v. UNITED STATES.

No. 11432.

Circuit Court of Appeals, Ninth Circuit.

May 23, 1947.

Edmund J. Holl, of Reno, Nev., and Kendrick Johnson, of San Francisco, Cal., for appellant.

Miles N. Pike, U. S. Atty., of Reno, Nev., for appellee.

Before STEPHENS, BONE, and ORR, Circuit Judges.

ORR, Circuit Judge.

Lawrence, appealing from a judgment of conviction for transporting a woman in interstate commerce for purposes of prostitution, in violation of 18 U.S.C.A. § 398, raises four main points challenging (1) the sufficiency of the indictment; (2) the admission of testimony showing similar relations of appellant with a prostitute other than the one alleged to have been transported; (3) certain impeaching questions which the trial court allowed an impeaching witness to answer on cross-examination and (4) the misconduct of the United States attorney.

Weatherby, the complaining witness, worked as a prostitute in San Francisco under an arrangement with appellant whereby she gave him the bulk of her earnings. Later, appellant told Weatherby that she was going to Battle Mountain, Nevada, to continue her work. She testified that appellant drove the car in which she was a passenger part of the distance; that appellant informed her he was not supposed to drive across the state line; that some other person drove the car across, but appellant again took the wheel after crossing the line. The parties continued on to Battle Mountain where Weatherby continued to practice prostitution at a place called the Ace Club. Appellant paid with his personal check $300 of the first month's rental on a lease of the Ace Club, executed in the name of one Bennett.

The credibility of the witness Weatherby is argued and it is sought to avoid the rule that we will not weigh the evidence by maintaining that the testimony of said witness was so thoroughly discredited as to render it unworthy of belief. We are unable to make any such appraisal of the evidence. The jury evidently accepted the testimony of Weatherby and rejected contrary evidence of other witnesses. This was within the province of the jury. Her evidence, taken in connection with other competent evidence in the record, was ample to support the verdict.

Turning to the attack on the sufficiency of the indictment we find that:

First: The indictment alleged that appellant "did knowingly transport, cause to be transported and aid and assist in transporting in interstate commerce" Weatherby for immoral purposes. Appellant contends that this indictment, because it charges three distinct offenses, fails to inform him adequately of the nature of the crime with which he is charged.

We cannot agree. If appellant felt unable to defend, or to prepare himself for trial because of lack of information as to the accusation against him, his remedy was a motion for a bill of particulars. No such motion was made. Appellant did not complain as to the insufficiency of the indictment until this appeal.

People v. Hatch, 13 Cal.App. 521, 109 P. 1097, is cited, but there the court found there was only one charge of embezzlement set out in the indictment whereas the evidence showed several separate fraudulent appropriations. Under these circumstances, the California court quite properly held erroneous an instruction which failed to limit the jury to the consideration of only one of the offenses proved, applying the familiar rule that where several substantive offenses are shown, the Government must elect as to which was the substantive offense on which the indictment was founded. Neither People v. Hatch, 13 Cal.App. 521, 109 P. 1097, nor People v. Dutra, Cal.App., 171 P.2d 41, also cited by appellant, is applicable to the instant case. Here, the evidence disclosed but one substantive offense, and the indictment fully apprised appellant of the nature of that offense.¹

Second: One Snyder, a Government witness, testified, among other things, that she followed the same occupation, and at the same time, as Weatherby in San Francisco; that she and appellant lived in an apartment frequented by other women of the same status; that appellant told her what charges she should impose; that she was given a small allowance from her earnings; that appellant purchased her clothes; that she worked under "the same deal" as Weatherby; that she later went to Battle Mountain where both she, Weatherby, and other inmates of the San Francisco apartment continued to work as prostitutes in Nevada; and that appellant kept records or books under the various girls' first names.

Appellant, testifying in his own behalf, admitted that he knew Snyder and that he had discussed with her the question of her engaging in prostitution. He denied that girls had given him money "on the ground of prostitution. What they did do was they threw me as a gift some money sic." He also admitted that he had talked to other women about prostitution, and that Snyder had lived at his apartment in San Francisco with Weatherby.

Appellant contends that the testimony tended to connect him with the commission of other crimes and acts of wrongdoing and, inasmuch as the admission of said evidence did not come within any of the exceptions to the rule excluding evidence of other offenses, his objections to Snyder's testimony should have been sustained.

The evidence in question was competent to show appellant's intent in taking Weatherby to Nevada. Intent is, of course, one of the material issues in a prosecution such as this.²

In the Krulewitch case (footnote 2), the Second Circuit Court of Appeals held, in a prosecution under the same statute involved here, that the testimony of a prostitute, other than the one alleged to have been taken across a state line, that appellant had made his living from her earnings, was competent on the issue of his purpose in taking the complaining witness there from New York to Florida, "for it fell within the well-established doctrine that other instances of similar conduct are competent to prove intent (or purpose) upon the occasion for which the accused is on trial." 145 F.2d at page 80, 156 A.L.R. 337. In the same case that Court laid down the following test:

"* * * The competence of evidence in the end depends upon whether it is likely, all things considered, to advance the...