United States v. Henderson

• Decision Date: 06 December 1950
• Docket Number: No. 10088.,10088.
• Citation: 185 F.2d 189
• Parties: UNITED STATES v. HENDERSON.
• Court: U.S. Court of Appeals — Seventh Circuit

185 F.2d 189 (1950)

UNITED STATES v. HENDERSON.

No. 10088.

United States Court of Appeals, Seventh Circuit.

November 8, 1950.

Rehearing Denied December 6, 1950.

William M. Giffin, Edward G. Pree, Springfield, Ill., for appellant.

Howard L. Doyle, U. S. Atty., Marks Alexander, Asst. U. S. Atty., Springfield, Ill., for appellee.

Before KERNER, FINNEGAN, and LINDLEY, Circuit Judges.

KERNER, Circuit Judge.

Defendant, Henderson, was convicted of subornation of perjury in violation of § 1622, Criminal Code, 18 U.S.C.A., in that he had knowingly suborned and procured one Betty Jane Barry to commit perjury. At the close of the Government's evidence, and at the close of all the evidence, defendant moved for a directed verdict in his favor; both motions were denied. The jury returned a verdict of guilty upon which the court rendered judgment, and from that judgment, defendant appeals.

The indictment alleged that on April 13, 1949, there came on for hearing in the United States District Court a certain cause in which, by indictment, Henderson was charged with violating the White Slave Traffic Act¹ in connection with the transportation of Betty Jane Barry in interstate commerce from St. Louis, Missouri, to Quincy, Illinois, for the purpose of prostitution. When the cause came on for trial, the United States attorney moved the court to nolle prosequi the indictment. He informed the court that Barry had repudiated her testimony which she had theretofore given under oath before a United States Commissioner in Chicago, Illinois. The indictment further alleged that on the hearing of the motion to nolle, it became a material matter for the court to determine whether the statement she had made before the United States Commissioner was true. Thereupon Barry was sworn and took her oath to speak the truth concerning the matters being inquired into by the court. She testified that her testimony before the Commissioner to the effect that Henderson had taken her from East St. Louis, Illinois, to St. Louis, Missouri, and there purchased two railroad tickets with the purpose and intent of transporting her from St. Louis to Quincy, Illinois, for the purpose of placing her in a house of prostitution, was not true, that it was false.

At the trial the evidence for the Government consisted of certain exhibits, the testimony of the clerk of the court and two agents of the FBI, the testimony of Betty Jane Barry, as well as that of eleven other witnesses. The defendant did not testify, but four witnesses testified in his behalf. The jury believed the Government's witnesses and brought in a verdict of guilty, thus establishing that Barry met defendant in the spring of 1944 at East St. Louis and went with him to a hotel, and that, with defendant's approval, she prostituted herself at numerous hotels and gave her earnings to defendant; that in August, 1944, she went to Quincy, and while there she sent to defendant at East St. Louis a Western Union money order for $15; that about August 19 she rejoined defendant at East St. Louis and thence they went together to St. Louis, Missouri, where defendant purchased two tickets on the Chicago, Burlington & Quincy Railroad, and they then proceeded to Quincy, Illinois, and registered at the Quincy Hotel as husband and wife; that on August 20, while at Quincy, Barry accompanied one Thomas, whom she had picked up at a tavern, to a hotel at Quincy and there stole his wallet; she was arrested, and after conferring with defendant, and on his advice, she entered a plea of guilty and was sentenced for a term of six months; that on April 10, 1949, at Springfield, Illinois, just prior to the calling of the White Slave Traffic Act case, she met defendant who asked her not to testify against him, and suggested that she deny that defendant had accompanied her from East St. Louis to St. Louis, and then to Quincy, Illinois.

Defendant's main contention is that the evidence was insufficient to sustain the judgment. He makes the point that in order to substantiate the charge that perjury was committed by the alleged subornee, it was incumbent on the Government to prove that there was a violation of the White Slave Traffic Act.

It is true that Barry was the only witness who testified with reference to her transportation from St. Louis to Quincy. But, as already noted, there was evidence that defendant and Barry arrived at the Quincy Hotel at 4 o'clock a. m. and that he registered at the hotel as husband and wife. In addition the evidence disclosed that Barry and the defendant lived together during the summer of 1944 as husband and wife; that she was prostituting herself in a house of assignation operated by one Hannah Summers, and that she contributed to his support from her earnings. In this situation, it is not for us to make an independent valuation of the testimony. We will not weigh evidence; that function belongs to the jury. We think from all the evidence and circumstances here appearing, the jury was warranted in believing that defendant while at St. Louis purchased two railroad tickets and that Barry was then transported to Quincy for the purpose of prostitution.

Defendant's next contention is that in a prosecution for subornation of perjury, the actual perjury must be proven by two credible witnesses, or by one credible witness plus corroborating circumstances, and the corroboration must be on material issues of fact. He argues that the very nature of the crime necessitates the testimony of the confessed perjurer as the basic evidence for the prosecution, and in order to constitute the crime, there must be perjury, and unless the alleged subornee is corroborated on material matters by credible witnesses, the conviction cannot stand.

Concededly, the unsupported testimony of an alleged subornee cannot sustain a conviction for subornation of perjury, Hammer v. United States, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118, and Weiler v. United States, 323 U.S. 606, 65 S. Ct. 548, 89 L.Ed. 495, but a conviction will be sustained if the testimony of the subornee is corroborated by other circumstances proven in the case, United States v. Wood, 14 Pet. 430, 10 L.Ed. 527, for the reason as stated 271 U.S. at page 627, 46 S. Ct. at page...