United States v. Smith, 315.

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: CLARK, Circuit
• Citation: 112 F.2d 83
• Parties: UNITED STATES v. SMITH.
• Docket Number: No. 315.,315.
• Decision Date: 20 May 1940

112 F.2d 83 (1940)

UNITED STATES
v.
SMITH.

No. 315.

Circuit Court of Appeals, Second Circuit.

May 20, 1940.

John S. McGovern, of Buffalo, N. Y. (Harry Lipsitz, of Buffalo, N. Y., on the brief), for defendant-appellant.

Joseph J. Doran, Asst. U. S. Atty., of Buffalo, N. Y. (George L. Grobe, U. S. Atty., of Buffalo, N. Y., on the brief), for the United States.

112 F.2d 84

Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

A Grand Jury in the Western District of New York returned four indictments relating to the maintenance of a house of prostitution in Buffalo. The first indictment charged the appellant Smith, one Funderburg, and one Few with a conspiracy, contrary to the provisions of 18 U.S.C.A. § 88, to violate several federal statutes dealing with the importation and harboring of alien girls (8 U.S.C.A. §§ 138, 144, 18 U.S.C.A. §§ 398, 402); the second charged Smith, Few, and Funderburg with harboring alien girls not entitled to reside in the United States, in violation of 8 U.S.C.A. § 144; the third charged the appellant Smith alone with maintaining, for the purpose of prostitution, an alien girl illegally imported into the United States for the purpose of prostitution, in violation of 8 U.S.C.A. § 138; the fourth charged Funderburg alone with transporting an alien girl into the United States for the purpose of prostitution, in violation of 18 U.S.C.A. § 398 and 8 U.S. C.A. § 138. The four indictments were consolidated for trial, and the jury brought in verdicts of guilty in each case. The defendant Smith, who was convicted under the first three indictments, alone appeals.

The case for the prosecution rests mainly on the testimony of two Canadian girls, Hilda Cross and Elizabeth Grace. There was ample evidence permitting the jury to believe the following story. The two girls came to Buffalo with friends on July 4, 1939, to spend the holiday. While there, they sought out Funderburg, whom they knew slightly, and passed the day with Funderburg and Few. They returned to Canada that night, but reentered the United States the next day, telling the officers at the Peace Bridge that they intended to see a show and would return the same day. Again they encountered Few and Funderburg, and told these gentlemen that they had insufficient funds to essay the return journey to Toronto. Few generously suggested that he knew how they could earn some money, and he and Funderburg took the girls to the residence of the appellant, Anna Smith. As to what happened when they saw Smith, Grace testified as follows: "The defendant Few said `This is Babe, and this is Jackie, they haven't got enough money to get back to Canada.' * * * She said `All right, but don't tell anybody you're from Canada.' I stayed at this place practicing prostitution."

The two girls remained at appellant's place until July 25, 1939, when Grace returned to Canada to see her father. Before she left, appellant told her not to take any clothes because she was coming back. Funderburg accompanied her to Toronto and brought her back to appellant's residence, where both women remained until August 6. The major portion of their earnings was appropriated by Few and Funderburg. The girls were under the daily supervision of Anna Smith, and were paid regular visits by the other two defendants.

1. Appellant's first objection is addressed to the consolidation of all four indictments for trial, pursuant to 18 U.S.C. A. § 557. That statute provides: "When there are several charges against any person for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments the whole may be joined in one indictment in separate...