United States v. Pape, 385.

• Decision Date: 21 July 1944
• Docket Number: No. 385.,385.
• Citation: 144 F.2d 778
• Parties: UNITED STATES v. PAPE.
• Court: U.S. Court of Appeals — Second Circuit

144 F.2d 778 (1944)

UNITED STATES v. PAPE.

No. 385.

Circuit Court of Appeals, Second Circuit.

July 21, 1944.

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Henry G. Singer, of Brooklyn, N. Y. (Samuel W. Altman and Sidney H. Levin, both of New York City, on the brief), for appellant.

Harold J. McAuley, Asst. U. S. Atty., of New York City (James B. M. McNally, U. S. Atty., of New York City, on the brief), for appellee.

Before L. HAND, SWAN, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

Pape appeals from a judgment of conviction under an indictment for transporting a woman in interstate commerce "for the purpose of prostitution, debauchery and other immoral purposes." He raises the following objections: (1) That statements were admitted against him at his trial, made by him to an officer in the Federal Bureau of Investigation after his arrest and before he was arraigned. (Since the delay was of only a few hours and no duress was involved, the point has now been answered by the decision of the Supreme Court in United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, and we may disregard it.) (2) That an attorney retained by him was compelled to disclose that he, the accused, had retained him to appear for the prostitute and had paid his fee. (3) That the evidence would not support a verdict. (4) That the judge refused to call the prostitute as the "court's witness." (5) That the judge misinstructed the jury.

The testimony, if the jury chose to accept it, proved that the woman, charged in the indictment to have been transported, was a prostitute, and known to the accused to be such; and that he and she were living together in a hotel on West 72d Street in New York in July, 1942, as a married couple. The accused owned a Packard motor car, which he was accustomed to park outside this hotel; and on the afternoon of a day which he could not fix, an elevator operator, who was in the habit of doing errands for the accused, loaded into this car two handbags and a steamer trunk, and, when he left work at ten o'clock in the evening, the car was not there. On the morning of July 11, 1942, the accused appeared with the woman at a Washington hotel where they registered as a married couple under a false name. They came in a Packard car in which there were two small bags and a large one. On the 15th a detective arrested the woman as a prostitute after she had admitted him to her bedroom and set the price of five dollars for her favors. This charge was dismissed upon the promise of an attorney, one Buckley, who appeared for the woman, that she would leave town; but on August 29 the detective again found her in Washington, this time in another hotel with fourteen other known prostitutes. She was again released, and the accused took her back to New York. How long he had himself stayed in Washington was in some dispute. The clerk of the hotel to which he took the woman on July 11 spoke of seeing him "in or near" the hotel for several succeeding days, but something less than a week. When he booked the room, he told the clerk he should stay a week or ten days; and he took a double room with double bed, paying the rate for occupancy by two people. The accused himself, when in custody under arrest, declared to a fellow prisoner that he had stayed only "overnight"; that he had taken the woman, with whom he had been living for two years, to Washington because she had come too much under the notice of the New York police; and that he returned to Washington to take her back, after she had in turn become too much involved with the Washington police. He also told this prisoner that they had checked in as man and wife at the Washington hotel, a statement he had also made — after first denying the fact — to the FBI agent at the time of his arrest, with the further observation that he did not see that that fact made any difference, and that if the FBI were checking hotels on him they would have to do a lot of checking, for he had registered in numerous hotels with various girls. The accused did not testify or offer any evidence.

From this it is clear that there was ample evidence to support a verdict that the accused had transported the woman from New York to Washington for the immoral purposes interdicted by the statute. As to the purpose of prostitution, he claims the conclusion was reached only through use of evidence of various collateral circumstances, of a kind not merely irrelevant, but also highly prejudicial; this included not only evidence of the purchase and servicing of the Packard car, which was directly relevant, as identifying him with it and thus corroborating other evidence fixing his trip to Washington, but also of several arrests of the woman for prostitution, both before and after the time here involved, and of her working in a house of prostitution in Saratoga Springs nearly a year before. The latter, however, was admissible on well settled principles particularly applicable to this type of case. The evidence showed that they were living together as man and wife at the time of the arrests, and, indeed, that the arrest just prior to the Washington trip furnished the reason for his taking her away; while it was he who introduced her into the Saratoga Springs house, and when she left a few days later for lack of sufficient business he at least knew of the occasion for her going and her next destination. Obviously an accused will not himself disclose his intent. Hence it is well settled that it may be discovered elsewhere, as from evidence of other similar activities of the accused, such as that he has used the same woman, or some other woman, for like improper purposes. Among numerous cases may be cited Ellis v. United States, 8 Cir., 138 F.2d 612; Neff v. United States, 8 Cir., 105 F.2d 688; Cohen v. United States, 5 Cir., 120 F.2d 139; Baish v. United States, 10 Cir., 90 F.2d 988; Bracey v. United States, App.D.C., 142 F.2d 85; 2 Wigmore on Evidence, 3d Ed.1940, §§ 357, 360.

That the evidence was circumstantial, that, indeed, some of the witnesses were not too sure of their dates, or of their identifications of the accused and the woman — all presented issues which were for the jury and were settled by the jury's verdict. We have had occasion to point out that there is no such rule as here claimed by the accused in his requests to charge, that "each circumstance" must be established beyond a reasonable doubt, and that "such circumstances" must "exclude and preclude every reasonable hypothesis other than that of the defendant's guilt." Such a rule would infringe on the jury's function of determining the facts, including reasonable deductions from proven facts. The judge has an over-all duty to decide whether the case is strong enough under the applicable rules of law to go to the jury at all, and then he must admonish the jury of its duty to free the accused if upon all the evidence it is not convinced of guilt beyond reasonable doubt. The admonition, however, is directed to the case as a whole, not to each detail; and it must not be given the stultifying interpretation of preventing the jury from determining by the process of reasonable inference just what actually happened as a fundamental step to reaching its verdict. United States v. Valenti, 2 Cir., 134 F.2d 362, certiorari denied 319 U.S. 761, 63 S.Ct. 1317, 87 L.Ed. 1712; United States v. Mule, 2 Cir., 141 F.2d 487; United States v. Feinberg, 2 Cir., 140 F.2d 592.

The accused objects further that the judge, following the terms of the indictment quoted above, left the case to the jury in the alternative, so that they could find the accused guilty of transporting the woman for the purposes of prostitution or for the purpose of continuing their illicit sexual relations which had begun in New York. He does not deny that the latter would also violate the law, Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442, L.R.A.1917F, 502, Ann.Cas. 1917B, 1168; United States v. Reginelli, 3 Cir., 133 F.2d 595, certiorari denied Reginelli v. United States, 318 U.S. 783, 63 S. Ct. 856, 87 L.Ed. 1150, rehearing denied 319 U.S. 780, 63 S.Ct. 1027, 87 L.Ed. 1725, but argues rather that this was not the theory upon which the prosecution had proceeded. In civil procedure, some vogue has been had for the baleful "theory of the pleadings" or "theory of the case" doctrine, now happily repudiated under the new civil rules, 3 Fed.Rules Serv. 667; 10 Calif. L. Rev. 202; 8 Col.L.Rev. 523; 40 Yale L.J. 311; Clark, Code Pleading, 174-179; but it does not seem to have had place in criminal procedure. It is difficult to see how it could, particularly under modern views of the function of the indictment as serving only as fair notice to the accused of the crime with which he is charged. United States v. Achtner, 2 Cir., 144 F.2d 49, and cases cited. Hence the proper issues in a criminal case are whether the indictment fairly charges a crime as defined by a federal statute and whether the proof, adduced in a fair trial, supports the indictment, not what the prosecutor's legal theories of the case may have been. Here the speeches of counsel are not reproduced, and we know no more of the theory of the prosecution than the evidence suggests. In other words, the point must come only to this that there was not sufficient evidence of this purpose to submit to the jury.

But on this the evidence seems to us, if anything, more direct than that upon the alternative purpose to use the woman for hire. Here the evidence that such relations between them did continue in Washington appears most directly and without the need of resort to inference. True, incidental sexual intercourse, not the purpose of the trip, is not sufficient under the statute, Sloan v. United States, 8 Cir., 287 F. 91; but here the evidence of purpose...