United States v. Terry, 16768.

Decision Date06 July 1966
Docket NumberNo. 16768.,16768.
Citation362 F.2d 914
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John Thomas TERRY, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

Sheldon M. Meizlish (Court Appointed), Detroit, Mich., for appellant.

Patricia J. Pernick, Asst. U. S. Atty., Detroit, Mich., Lawrence Gubow, U. S. Atty., Detroit, Mich., on brief, for appellee.

Before PHILLIPS, Circuit Judge, CECIL, Senior Circuit Judge, and MATHES,* Senior District Judge.

CECIL, Senior Circuit Judge.

This cause is an appeal from a judgment of conviction of the defendant-appellant, John Thomas Terry, in the United States District Court for the Eastern District of Michigan, Southern Division. John Thomas Terry, defendant-appellant, hereinafter referred to as defendant, was charged in an indictment: that on or about July 29, 1963, he knowingly transported in interstate commerce, from Chattanooga, Tennessee, to Detroit, Michigan, by automobile, one Mardean Teague for the purpose of prostitution, debauchery and other immoral purposes, in violation of Section 2421,1 Title 18, U.S.C. Judgment was entered upon a verdict of guilty by a jury and the defendant was sentenced to imprisonment for three years.

One of the assignments of error is that the evidence is insufficient to sustain the conviction. According to the undisputed testimony in the record, the defendant and two of his friends met Mardean Teague and some of her friends in Chattanooga, Tennessee, on Sunday, July 29, 1963. After visiting an "after hour" place and a beer tavern where they did some drinking they rode around for about an hour. The defendant and Mardean, with some of their friends, then went to the home of Billy Bonds, a friend of the defendant. Here the defendant and Mardean spent the night together. The next day, Monday, July 30th, the defendant, his two friends, Lorenzo and Miles, and Mardean and Maggie Williams left Chattanooga in the defendant's automobile for Detroit about two o'clock in the afternoon.

The party arrived in Detroit on Tuesday morning, July 31st about 4 A.M. In Detroit, they took Lorenzo home and then the other two couples went to the defendant's apartment at 98 Winder. Mardean lived at this apartment for about two months, during her entire stay in Detroit. During Mardean's first day in Detroit the defendant took her to a department store and bought her some clothing. This clothing was such that the jury might well infer that it was to equip her for entrance into her new profession of prostitution.

The defendant introduced Mardean to Irma Jean Smith, his "wife-in-law," (a woman who shares her man with another woman). Irma instructed her in the art of prostitution which she practiced in Detroit from the second night of her arrival until she returned to her home in Chattanooga.

The basis of the defendant's claim that the evidence is insufficient to sustain a conviction is that it fails to show that he had a purpose before arriving in Detroit of having Mardean engage in prostitution. This claim is untenable. The trial judge correctly instructed the jury on intent and purpose:

"Intent or motivation need not be proved by direct evidence. The necessary intent or purpose on the part of a defendant in a prosecution for violation of this statute may be proved by circumstantial evidence, and as bearing upon this essential element of the offense, the conduct of the parties within a reasonable time before and a reasonable time after the transportation may be taken into consideration by you.
"Intent, as I have already stated, is a state of mind with which an act is done. It is the mental process or the design, the aim, the purpose, or the object of the act. The intent which accompanies the commission of an act is purely a mental process, and as such, is rarely capable of being proved by direct evidence, and therefore may be inferred from outward manifestations or conditions or acts of the defendant, or other facts and circumstances surrounding the commission of an act or acts."

One cannot read the record in this case without concluding from all the facts and circumstances that the defendant's purpose in taking Mardean to Detroit was to have her engage in prostitution. Mardean testified that the defendant talked to her about prostitution in Detroit before she left Chattanooga. There was ample testimony before the Court from which the jury could draw a legitimate inference that the defendant intended to have Mardean engage in prostitution in Detroit before they left Chattanooga.

The testimony of the prosecuting witness, if believed by the jury, is sufficient to support a verdict of guilty. Caminetti v. United States, 242 U.S. 470, 495, 37 S.Ct. 192, 61 L.Ed. 442; Wegman v. United States, 272 F.2d 31, 33, C.A.8.

Another assignment of error is that the trial judge refused to instruct the jury as to defendant's theory of the case. The trial judge refused to give an instruction2 which was submitted in writing before arguments to the jury. (Rule 30, F.R.Cr.P.) This requested instruction unduly emphasized a piece of evidence which defendant's counsel considered favorable to defendant. Blauner v. United States, 293 F.2d 723, 737-738, C.A.8, cert. den. 368 U.S. 931, 82 S.Ct. 368, 7 L.Ed.2d 193; United States v. Pannell, 178 F.2d 98, 99, C.A.3. The trial judge gave a very fair and adequate instruction on credibility of witnesses and the theory of the defense. Chargois v. United States, 267 F.2d 410, 412, C.A.9. He is not required to give an instruction in the exact language submitted by counsel. Sugarman v. United States, 249 U.S. 182, 185, 39 S.Ct. 191, 63 L.Ed. 550; Holt v. United States, 218 U.S. 245, 253, 31 S.Ct. 2, 54 L.Ed. 1021; Davis v. United States, 226 F.2d 331, 336, C.A.6, cert. den. 350 U.S. 965, 76 S.Ct. 432, 100 L.Ed. 838, rehearing den. 351 U.S. 915, 76 S.Ct. 693, 100 L.Ed. 1449; Henderson v. United States, 218 F.2d 14, 18, 50 A.L.R.2d 754, C.A.6, cert. den. 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253 rehearing den. 349 U.S. 969, 75 S.Ct. 879, 99 L.Ed. 1290. There is no merit to this claim of error.

The defense further claims that government counsel were guilty of misconduct, prejudicial to the defendant, in calling witness Irma Jean Smith when they knew that she would claim privilege against self incrimination under the Fifth Amendment to the Constitution of the United States.

Counsel for the defendant told the court that he had been advised by the witness that she ...

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