Wagner v. United States, 10916.

• Decision Date: 22 January 1949
• Docket Number: No. 10916.,10916.
• Citation: 171 F.2d 354
• Parties: WAGNER v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

171 F.2d 354 (1948)

WAGNER v. UNITED STATES.

No. 10916.

United States Court of Appeals Fifth Circuit.

December 14, 1948.

Rehearing Denied January 22, 1949.

Crampton Harris, of Birmingham, Ala., for appellant.

John D. Hill, U. S. Atty. and Robert Giles, Asst. U. S. Atty., both of Birmingham, Ala., for appellee.

Before McCORD and LEE, Circuit Judges, and MIZE, District Judge.

MIZE, District Judge.

Appellant was indicted on September 9, 1943 in the Southern Division of the Northern District of Alabama for violation of the Mann Act.¹ The indictment contained six counts.

The material parts to the decision in this appeal of the first count charge: "On or about the 31st of January, A. D. 1943, at or near Birmingham in the County of Jefferson, State of Alabama, within the jurisdiction of this court, Ivan Laughlin Wagner, alias Jack Wagner, alias Marion Shelton * * * did then and there unlawfully and knowingly transport and cause to be transported and aid and assist in obtaining transportation for and in transporting in interstate commerce, that is to say, from Birmingham in the State of Alabama to Richmond in the State of Virginia, a certain woman or girl, to-wit, Elsie Mae Underwood, alias Evelyn Ellis, whose name is otherwise unknown to the jurors, for the purpose of prostitution and debauchery and for other immoral purposes, and with the intent and purpose on his part to induce and entice such woman or girl to engage in certain immoral practices, etc." Counts 2, 3, 4, 5 and 6 are substantially in the same language, except as to dates and as to the names of the women.

At the trial on the indictment, count two was dismissed by the government and the defendant was convicted on each of the other counts. On the first count he was sentenced to a term of five years and on the sixth count he was sentenced to a term of five years to begin at the end of the term imposed on count one. On counts three, four and five he was placed on probation for five years, to begin at the expiration of the sentence imposed on count six. He was arraigned under the indictment on October 4, 1943 at Jasper, Alabama, which was in the Jasper Division of the Northern District of Alabama, and entered his plea of "not guilty". The judgment of arraignment recites as follows: "This day comes the above named defendant, Ivan Laughlin Wagner, alias Jack Wagner, alias Marion Shelton, and waives his right to appear before the court at Birmingham * * * and asks leave of the court to appear before the court at Jasper in the Jasper Division of the Northern District of Alabama and enter his plea." At the time of his arraignment at Jasper his attorney was not present and one of the assignments of error before the court now is based upon the absence of his attorney at the arraignment and the assertion on the part of the appellant that he did not waive the presence of his attorney. Thereafter the case was set for trial on December 13, 1943 before Judge Murphree, now deceased, at Birmingham, and at the trial he was ably represented by counsel of his own choice, and, as above stated, was convicted on the 14th day of December, and sentence was imposed. On the 15th of December, 1943 he filed his notice of appeal and was permitted by order of February 2, 1944 to appeal in forma pauperis, and he was granted until March 1, 1944 to prepare and file his bill of exceptions and perfect his appeal. His appeal was not perfected at that time and this court dismissed that appeal for failure to perfect and prosecute same. After his incarceration he filed a petition which the trial court treated as an application for a writ of error coram nobis and the prayer of his petition was denied. This court, in a per curiam opinion, affirmed the judgment. 157 F.2d 516. Certiorari was denied by the Supreme Court of the United States. 330 U. S. 846, 67 S.Ct. 1080, 91 L.Ed. 1290. He filed a petition for writ of habeas corpus in the district court of Kansas and after a hearing it was denied, and the action of the trial court was affirmed by the Court of Appeals. Wagner v. Hunter, 10 Cir., 161 F.2d 601. Certiorari denied. Wagner v. Hunter, 332 U.S. 776, 68 S.Ct. 39. Thereafter he filed a motion in this court for reinstatement of the appeal without limitation as to the time and this court denied the petition. The Supreme Court granted certiorari and ordered that the appeal be reinstated. Wagner v. United States, 333 U. S. 870, 68 S.Ct. 895. The matter is now here on the record of the proceedings upon the original trial thereof as well as the matter that arose upon his being brought back to perfect the record for his appeal. Upon his being returned to the district court for the purpose of perfecting his record upon the reinstated appeal, he filed on May 24, 1948 a motion to correct the recitals in the record of his arraignment at Jasper, Alabama had on the 4th of October, 1943 so as to recite that he did not intelligently waive the presence of his counsel. The trial court had a full hearing upon this motion, at which the appellant himself testified, as well as did other witnesses, and the trial court adjudged that he had intelligently waived the presence of his counsel and consented to be arraigned at Jasper, Alabama. At this hearing upon this motion he was ably represented by counsel appointed by the court and who has ably represented appellant in the preparation of the present record and upon the hearing of the appeal before this court.

Most of the questions involved in this appeal are raised by virtue of paragraph (b) of Rule 52 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which reads: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The first four specifications of error raise the point that there was not sufficient evidence to support a conviction on counts 3, 4, 5 and 6 of the indictment. Specifications of error numbers, 5, 6, 7, 8, 9 and 10 raise points that the court below improperly instructed the jury as if the appellant were indicted under Section 399, Title 18, U.S.C.A. now 18 U.S.C.A. § 2422, when, as a matter of fact, he was indicted under Section 398 of that Title now 18 U.S.C.A. § 2421, and each one of the assignments last named objects in substance to that part of the charge wherein the court said: "It is not an essential thing in a case of this type that a woman know the purpose of the defendant or the person who transported her or caused her to be transported or induced her or enticed her to be transported for that purpose." Each one of these assignments objects to the language using the words "induces", "persuades" or "entices", and urges that such language was prejudicial and was error. No exceptions were taken by counsel for the appellant to the charge at the time, but as above stated, these assignments are raised by the appellant and noticed by this court pursuant to Rule 52. It is necessary to set out at length practically the entire charge of the court in order to determine if these assignments contain sufficient merit to require a reversal. The court charged as follows:

"The court cannot decide the facts in this case, but can only give you the law as it pertains to the case, and when you have received the law in the case, you having heard the testimony, then you will retire to the jury room and consider the evidence that you have heard, together with the law the court gives you in its charge.

"Gentlemen, this indictment did originally consist of six counts. Each count of this indictment states a case against this defendant — I mean it states a charge against him. The second count has been withdrawn by the Government's attorney, leaving for your consideration Counts 1, 3, 4, 5 and 6.

"This indictment — these counts charge this defendant, Ivan Laughlin Wagner, alias Jack Wagner, alias Marion Shelton, with having violated what is known commonly as the White Slavery Traffic Act, and is known as the Mann Act, in honor of the man who introduced the Bill in Congress to make it unlawful to transport women or girls in Interstate Commerce for the purpose of debauchery, drinking or for other immoral purposes such as sexual intercourse.

"Gentlemen, Congress passed this law for the protection of the women and girls of this country, to protect them from prostitution and debauchery and other immoral purposes.

"The thing that gives this court jurisdiction of this case is the fact that the victims, we call them, the women must be transported from one state to another in Interstate Commerce.

"Now, that Act provides, gentlemen, that whoever transports or causes to be transported or induces or entices or persuades or forces any woman or girl to commit or to indulge in acts of debauchery and prostitution, immoral purposes, is a law violator.

"Now, the law provides, gentlemen, this: any man, or other person, for that matter, doesn't necessarily mean a man; we have women who are guilty of engaging in organized vice among women, as well as men, and this law says and means that when any person transports or causes to be transported any woman or girl for the purpose of debauchery and prostitution or other immoral purposes, such as sexual intercourse, must be at the time of that transportation or at the time he caused the transportation or at the time he induced or persuaded or enticed the man — I mean woman or girl or women or girls — to go from one state to another state for that purpose, his intent must be for that purpose, and intent must have existed in the defendant's mind at or before the time the woman or girl crossed the state line, from New Orleans to Birmingham in this case. The defendant must have had in his mind at the time the victim or the girl left the state of Louisiana to enter Alabama, that must have been his purpose, his intent, that is, for her to indulge in acts of debauchery and prostitution and illegal or immoral purposes. It doesn't matter whether he...