Morlan v. United States

• Citation: 230 F.2d 30
• Decision Date: 30 January 1956
• Docket Number: No. 5198.,5198.
• Parties: Girard William MORLAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

230 F.2d 30 (1956)

Girard William MORLAN, Appellant, v. UNITED STATES of America, Appellee.

No. 5198.

United States Court of Appeals Tenth Circuit.

January 30, 1956.

Ben D. Browning, Salt Lake City, Utah (Edward M. Garrett, Salt Lake City, Utah, on the brief), for appellant.

C. Nelson Day, U. S. Atty., Salt Lake City (A. Pratt Kesler, Asst. U. S. Atty., Salt Lake City, Utah, on the brief), for appellee.

Before BRATTON, Chief Judge, HUXMAN, Circuit Judge, and MELLOTT, District Judge.

BRATTON, Chief Judge.

An information was filed in the United States Court for Utah charging that Girard William Morlan knowingly transported in interstate commerce from Salt Lake City, Utah, to Las Vegas, Nevada, a girl named Patricia Ann Hyde, also known as Patricia Ann Green, for the purpose of prostitution. The case was tried and the jury was unable to agree upon a verdict. Later, an indictment was returned in the same court charging that Morlan knowingly transported in interstate commerce from Salt Lake City to Las Vegas a girl named Beth Mounteer for the purpose of prostitution. The cases were consolidated for trial and the defendant was found guilty in both cases. In the first case he was sentenced to imprisonment and in the second he was placed on probation. He appealed from the judgment in the first case but not from the judgment or order in the second case placing him on probation.

The jurisdiction of the court to try appellant on the information in this case is challenged. The substance of the argument in support of the contention is that a single offense was committed; that both the information and the indictment charged such offense; that the indictment was returned after the filing of the information; and that therefore the indictment superseded the information. The information and the indictment were predicated upon a single transportation of two women for purposes of prostitution. And the indictment was returned after the filing of the information. But the return of the indictment did not operate to supersede the information or to extinguish the jurisdiction of the court to try appellant upon the information. Thompson v. United States, 9 Cir., 202 F. 401, 47 L.R.A., N.S., 206; United States v. Strewl, 2 Cir., 99 F.2d 474, certiorari denied, 306 U.S. 638, 59 S.Ct. 489, 83 L.Ed. 1039, 2 Cir., 162 F.2d 819, certiorari denied, 332 U.S. 801, 68 S.Ct. 92, 92 L.Ed. 381.

The jurisdiction of the court to try appellant on the information is challenged on the further ground that he was compelled to stand trial on two charges for the same offense. The argument in support of the contention proceeds upon the level that appellant was wrongfully subjected to double jeopardy. But the constitutional immunity against being twice placed in jeopardy for the same offense is a personal right which may be waived. Callahan v. United States, 10 Cir., 35 F.2d 633; Bracey v. Zerbst, 10 Cir., 93 F.2d 8; Caballero v. Hudspeth, 10 Cir., 114 F.2d 545; McGinley v. Hudspeth, 10 Cir., 120 F.2d 523. The record fails to indicate that the question of double jeopardy was presented to the trial court in any manner and therefore it was waived.

Complaint is made that the court improperly admitted evidence relating to certain acts and conduct on the part of appellant after the transportation charged in the information. The particular testimony in question was given by one of the women who were transported from Salt Lake City to Las Vegas. She testified in substance that she and the appellant remained in Las Vegas about ten days or two weeks; that the two of them then returned to Salt Lake City together, traveling in appellant's automobile; that while they were enroute one tire blew out; that appellant took a tire off another automobile; that members of the police force were watching him; and that he spent the night in jail. And the witness further testified that some time after their return to Salt Lake City, she told appellant she was going to quit the practice of prostitution; and that later while having a gun in his hand appellant told her "either go back to work for him or I knew what happened to other girls who didn't." It is argued that the evidence tended to establish other offenses; and that it merely served to inflame the jury against appellant. In a case of this kind evidence tending to show immoral conduct and relations of the parties within a reasonable time before or after the transportation is admissible as bearing upon the purpose and intent with which the female was transported. Neff v. United States, 8 Cir., 105 F.2d 688. And where intent is an essential element of the offense charged, evidence throwing light upon that element is admissible even though it tends to prove the commission of another crime at a different time and place not too remote in time. Suhay v. United States, 10 Cir., 95 F.2d 890; certiorari denied, 304 U.S. 580, 58 S.Ct. 1060, 82...