Sandquist v. United States

• Decision Date: 12 November 1940
• Docket Number: No. 2118.,2118.
• Citation: 115 F.2d 510
• Parties: SANDQUIST v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

115 F.2d 510 (1940)

SANDQUIST v. UNITED STATES.

No. 2118.

Circuit Court of Appeals, Tenth Circuit.

November 12, 1940.

E. A. Rogers, of Salt Lake City, Utah, for appellant.

John S. Boyden, Asst. U. S. Atty., of Salt Lake City, Utah (Dan B. Shields, U. S. Atty., and Scott M. Matheson, Asst. U. S. Atty., both of Salt Lake City, Utah, on the brief), for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

Donald A. Sandquist was convicted on an indictment which charged a violation of 18 U.S.C.A. § 398. The charge was that on September 29, 1937, defendant did unlawfully and feloniously by means of a common carrier, knowingly transport, cause to be transported and did knowingly aid and assist in obtaining transportation for Edythe Countess from Salt Lake City, in the Central Division of the District of Utah, to Evanston, in the District of Wyoming, for the purpose of debauchery and other immoral purposes, to-wit: for the purpose of prostitution. Defendant was found guilty by the jury and was sentenced by the court. He has appealed from the judgment of the court.

During the cross examination of Edythe Countess by Mr. Hanson, the attorney for the defendant, the following proceedings occurred:

"Q. You say your name is Edythe Countess. Is that your name now? A. Yes.

"Q. That is your name now, is it? A. Well, no, that was the name I was working under.

"Q. They asked you yesterday `what is your name' —

"Mr. Boyden: May it please the court, we will object to that; because the name that this girl is using now is for her own protection, and was not used at any time during this case. It can have no probative value whatsoever; is improper cross-examination.

"The Court: He has not asked her any direct question yet.

"Mr. Hanson: I am asking her — What is your name now?

"Mr. Boyden: We object to it for that reason.

"The Court: You mean the name she is going by, or married name, something like that?

"Mr. Hanson: I want to know the name she is going by now.

"The Court: No, I will sustain that objection, if put on the ground she is married and doesn't want to disclose.

"Mr. Boyden: It is on that ground.

"Mr. Hanson: Save an exception, your Honor.

"The Court: You can have that.

"Mr. Hanson: Thank you for that.

"Q. Is it because you are married you don't want to disclose it? A. I have been married.

"Q. You are not married now, then? A. No, not right now.

"Mr. Hanson: Then, your Honor, that is not a good reason. She is not married.

"Mr. Boyden: It is obvious he is trying to get a name that can have no probative value. It is for her own protection.

"The Court: Yes. I think for that reason she doesn't have to disclose. She is trying to go right, live a decent life now. She doesn't have to make a record of it.

"Mr. Hanson: Of course, there is no evidence of that."

Defendant complains that this remark by the court was prejudicial to his rights; that it tended to influence the jury and prevented him from having a fair trial.

At the conclusion of the trial the court submitted the case to the jury on instructions which fairly presented the issue. He instructed the jury that:

"You have heard the testimony of the witnesses in this case, and the testimony of the woman, Edythe Countess, who testified as to what occurred in respect to this matter, she testifying that about the time alleged in the indictment this man paid her transportation fare from Salt Lake City to Evanston, Wyoming, and for the purpose of prostitution. That she went into a house of prostitution in Wyoming and subsequently, as she testified, that she gave this defendant money so earned in that way.

"You heard his testimony to the effect that he did not know the woman, never had anything to do with her, never paid her transportation, never caused her to be transported, had no knowledge of her one way or the other, in substance and effect.

"Now, in this case, as you know, from her own testimony, at that time, at least, she was engaged in prostitution, a woman of easy virtue, and presumably of no high character otherwise. And in considering this case it becomes your duty, of course, to determine the character of the witnesses, what they are in so far as it affects their credibility as witnesses. That applies to any witness. Applies to the witness, the woman that came from Wyoming, who said she kept a house of prostitution.

"People engaged in prostitution and in keeping houses of prostitution, we have found as a result of observation in this world and association with people, are not of that character that can be relied on to that extent that people of high character and good reputation may be relied upon.

"A man's business, for instance, other than maintaining or operating or being an occupant of a house of prostitution, may be considered, and his associations and all of those things, — applies to men as well as it does to women.

* * *

"You may consider the appearance of the witness on the witness stand, and any motive which any witness may have to tell that which is not true, and from all of the facts in the case given in evidence before you determine what weight ought to be given to the testimony of any witness.

"In this case the ultimate question is, did this defendant assist this woman by paying her transportation from Salt Lake City to Evanston, Wyoming? And if he did, was it for the purpose of having her practice prostitution when she got up there?

"She did, according to her testimony, go from Salt Lake City to Evanston; and she did, according to her testimony, and that of the madam who kept the house, practice prostitution up there after she went. She says this man paid her way up there. He says he did not.

"Now, you have their statements, you heard their testimony, you observed them on the witness stand. And considering all the facts and circumstances in the case that have been testified to, it is for you to determine where the truth lies."

At the conclusion of the charge to the jury, the following colloquy occurred:

By the Court: "I believe I have covered, in effect, what you have requested."

By the attorney for the government: "The government is satisfied with the instructions."

By the attorney for the defendant: "We are satisfied with the instructions, your Honor."

At this point defendant apparently was satisfied. He registered no complaint. At no point did he ask the court to declare a mistrial. He apparently realized for the first time that he had not had a fair trial when the jury returned a verdict of guilty.

A trial in a court is not a contest between opposing attorneys. It is...