United States v. Lair

• Decision Date: 27 March 1912
• Docket Number: 3,497.
• Citation: 195 F. 47
• Parties: UNITED STATES v. LAIR.
• Court: U.S. Court of Appeals — Eighth Circuit

195 F. 47

UNITED STATES v. LAIR.

No. 3,497.

United States Court of Appeals, Eighth Circuit.

March 27, 1912

McCabe Moore, Asst. U.S. Atty. (H. J. Bone, U.S. Atty., on the brief), for the United States.

Marshall B. Woodworth, for appellee.

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

REED District Judge.

The appellee, Henry Lair, who will be called the defendant, was on February 1, 1909, convicted in the United States District Court for the Northern District of Illinois, and sentenced to imprisonment in the United States penitentiary at Leavenworth, Kan., upon an indictment which charged him with having knowingly and unlawfully imported into the United States at Chicago within said district an alien woman, a citizen of the Republic of France, for the purpose of prostitution, and unlawfully detaining her in a certain house in said city for such purpose, and duly committed to the prison pursuant to such conviction and sentence. June 7 1909, he petitioned the United States District Court for the District of Kansas for a writ of habeas corpus to be released from such imprisonment.

The writ was issued, to which the warden of the penitentiary made due return, and upon the hearing thereof the defendant was discharged. 177 F. 789. The government prosecutes this appeal. The indictment upon which the defendant was convicted was returned December 15, 1908, and is in four counts. The first count, omitting the formal parts, is as follows:

'That one Henry Lair, otherwise called Henry Loir, * * * and one Mrs. Henry Lair, otherwise called Mrs. Henry Loir, * * * at Chicago, aforesaid, in the division and district aforesaid (Northern District of Illinois) unlawfully, willfully, and knowingly did import into the United States for the purpose of prostitution, and unlawfully did knowingly and willfully hold, to wit, from the first day of January, 1906, until and on the fifteenth day of July, 1907, in pursuance of such illegal importation, in their certain house of prostitution there situate, to wit (describing it) in the said city of Chicago, * * * a certain alien woman, to wit Marie Peuroy, otherwise called Georgia Davis, * * * who was then a citizen of the Republic of France, within three years after she, the said Marie Peuroy, * * * had entered the United States, and that the said Marie Peuroy * * * came to and entered the United States, within three years prior thereto; against the peace and dignity of the said United States and contrary to the form of the statute of the same in such case made and provided.'

The second and third counts charge the defendant with unlawfully holding said woman in the city of Chicago in the house described in the first count for the purpose of prostitution, in pursuance of an illegal importation.

The fourth charges the defendant with unlawfully keeping, harboring, and supporting said woman in said house for the purpose of prostitution.

To this indictment the defendant first pleaded not guilty; but later withdrew such plea, and entered a plea of nolo contendere, whereupon he was adjudged guilty as charged in the indictment, and sentenced to be imprisoned in the United States Penitentiary at Leavenworth, Kan., for and during a period of two years, and adjudged to pay a fine of $2,500 and costs.

The indictment is founded upon section 3 of Act March 3, 1903, c. 1012, 32 Stat. 1213, as amended by Act Feb. 20, 1907, c. 1134, Sec. 3, 34 Stat. 898, 899 (U.S. Comp. St. Supp. 1909, p. 447). As so amended that section reads:

'Sec. 3. That the importation into the United States of any alien woman or girl for the purpose of prostitution, or for any other immoral purpose, is hereby forbidden; and whoever shall, directly or indirectly, import or attempt to import, into the United States, any alien woman or girl for the purpose of prostitution, or for any other immoral purpose, or whoever shall hold or attempt to hold any alien woman or girl for any such purpose in pursuance of such illegal importation, or whoever shall keep, maintain, control, support, or harbor in any house or other place, for the purpose of prostitution, or for any other immoral purpose, any alien woman or girl, within three years after she shall have entered the United States, shall in every such case be deemed guilty of a felony, and on conviction thereof be imprisoned not more than five years and pay a fine of not more than five thousand dollars. * * * '

The words in italics were added by the act of 1907.

Counts 2, 3, and 4 of the indictment are predicated upon that part of the section which forbids the holding, keeping, supporting, or harboring in any house or other place in the United States any alien woman or girl for the purpose of prostitution, not including the importation of such person for such purpose.

That part of the section was adjudged to be invalid in Keller v. United States, 213 U.S. 138, 29 Sup.Ct. 470, 53 L.Ed. 737, 16 Ann.Cas. 1066, which was decided after the conviction of the defendant in this case, because beyond the power of Congress to enact it.

The only question for determination therefore is: Did the court have jurisdiction of the offense charged in count one of the indictment? The defendant's plea was to the indictment generally, and the conviction was general. If any count of the indictment is good and is sufficient to support the judgment, the conviction must be sustained. Claasen v. United States, 142 U.S. 140, 12 Sup.Ct. 169, 35 L.Ed. 966.

The defendant was discharged upon the ground that count 1 shows upon its face that the United States District Court for the Northern District of Illinois did not have jurisdiction of the subject-matter of the offense therein charged. This was upon the theory, as stated in the opinion of the District Court, that:

'It is not to be imputed to the learned judge pronouncing said judgment that he undertook to exercise jurisdiction over the offense of importing into the United States this woman, who the indictment alleges, came as an immigrant from the Republic of France, and consequently over the sea to some Atlantic seaport. That offense was consummated the moment such immigrant was landed within the United States. * * * The court will take judicial notice that a seagoing vessel carrying immigrants coming from the Republic of France to the United States did not find a port of entry within the Northern district of the state of Illinois. * * * It may be conceded for the sake of argument that the woman in question imported from France might first have entered the Dominion of Canada on the Atlantic seaboard and crossed the boundary into the United States. But how could she have reached Chicago without having theretofore entered United States territory outside of the Northern District of Illinois? If by overland, she would have traversed territory of another state. If by water, it might have been through the Mackinaw Straits, and thence on Lake Michigan to the city of Chicago. But in so coming, at Mackinaw she would have entered the United States, and been within the jurisdiction of the district of Michigan. In either contingency the offense of such importation would have been committed prior to reaching the Northern district of the state of Illinois.' 177 F. 789-793-795.

The order of discharge reads as follows:

'It is found from the petition and return and the evidence of record before the court that the said Henry Lair is unlawfully restrained of his liberty by confinement in the United States penitentiary at Leavenworth, Kan., under judgment of sentence rendered by the District Court of the United States for...