Wilkerson v. United States

• Citation: 342 F.2d 807
• Decision Date: 02 April 1965
• Docket Number: No. 17837.,17837.
• Parties: Clarence Everett WILKERSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

342 F.2d 807 (1965)

Clarence Everett WILKERSON, Appellant, v. UNITED STATES of America, Appellee.

No. 17837.

United States Court of Appeals Eighth Circuit.

April 2, 1965.

Robert Travis Johnson, St. Louis, Mo., made argument for appellant and filed typewritten brief.

William C. Martin, Asst. U. S. Atty., St. Louis, Mo., made argument for appellee and filed brief with Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo.

Before VOGEL and MEHAFFY, Circuit Judges, and REGISTER, District Judge.

VOGEL, Circuit Judge.

Clarence Everett Wilkerson (referred to as the defendant herein), having been convicted by a jury of a violation of 18 U.S.C.A. § 2421, commonly known as the "Mann Act", appeals to this court, asking that his conviction be reversed and the case remanded. The charging portion of the indictment returned by the grand jury alleged:

"That on or about the 17th day of March, 1964, CLARENCE EVERETT WILKERSON did knowingly transport in interstate commerce, by means of an automobile, certain women, to-wit, Beverly Mae Wilson, Mary Jean Stone, and Earnestine Brady, from the City of Little Rock, in the State of Arkansas, to the City of St. Louis, in the State of Missouri, within the Eastern Division of the Eastern District of Missouri, for the purpose of prostitution and debauchery.

"In violation of Section 2421, Title 18, United States Code."

To pass upon the contentions of the defendant, we find it necessary to summarize the testimony of the various witnesses, which we do as follows:

The first witness for the government was Mary Jean Stone. She testified that she had been a prostitute for eight years. On March 16, 1964, in Theo's Cafe in North Little Rock, Arkansas, she saw the defendant, his wife, Beverly, and Earnestine Brady. The defendant stated that he and Beverly were going to St. Louis and asked Earnestine Brady and Mary Jean Stone if they wanted to go. Beverly said she did not want to go. He held out the inducement of easy money from prostitution to be earned in St. Louis so the girls decided to come with him. In order to obtain expense money for the trip from Little Rock to St. Louis, Mary Jean Stone engaged in two acts of prostitution from which she earned $25, of which $10 was given to the defendant. The defendant took her car keys and started driving to St. Louis. The car they traveled in belonged to Mary Jean Stone but the defendant drove. The defendant made Beverly come with him and Earnestine and Mary Jean came along because he told them that they could make easy money in St. Louis, Missouri. When they arrived in St. Louis, he told Beverly Wilkerson to get money from a bellboy to rent a room. When Beverly refused, the defendant started hitting her over the head. In order to get him to stop, Mary Jean gave him some money. The defendant told her he was "pimping" for her and he obtained a prostitution customer for her for $25 later on the first day of their arrival in St. Louis. She gave $5 of this amount to the defendant. She then engaged in three or four further acts of prostitution, earning around $80. On the next day, March 18th, she engaged in four further acts of prostitution, earning $125. The defendant forcibly took $25 from this witness on the 19th of March.

The second witness to testify was Earnestine Brady, a sister of Beverly Wilkerson, wife of defendant. She said that she was born on October 8, 1937, and attained the eleventh grade in school. She initially engaged in prostitution in 1958 and continued until sometime in 1964. On March 16, 1964, at Theo's Cafe in North Little Rock, Arkansas, the defendant told about the easy money to be earned from prostitution in St. Louis, Missouri. The defendant drove Mary Jean Stone's car from Little Rock, Arkansas, to St. Louis, Missouri. After arrival in St. Louis, Missouri, Earnestine Brady engaged in prostitution.

Beverly Mae Wilkerson, nee Wilson, was the third witness called by the government. First, out of the presence of the jury she stated that the defendant was her husband and that she voluntarily desired to testify in this case. The trial judge, after assuring himself that her desire to testify was entirely voluntary, permitted her to do so but ruled that her testimony "should be limited to the matters between her and the defendant in this case". Thereafter, over objection, Mrs. Wilkerson gave her testimony substantially as follows: She was born on May 31, 1939, and has a twelfth grade education. She has been a prostitute for ten years. She and the defendant were married on March 21, 1963. On March 16, 1964, the defendant had said he needed money and wanted her to go to St. Louis from Little Rock, Arkansas, to work as a prostitute and to give him the money. On that date, March 16, 1964, before leaving Little Rock, Arkansas, she engaged in two acts of prostitution from which she earned $15 and gave this money to the defendant. They got to St. Louis about 1:30 a. m. March 17, 1964. It was the defendant's idea to come to St. Louis. He drove the automobile. En route to St. Louis he wanted her to engage in an act of prostitution for the price of $5. When she refused, he then slapped her. Immediately upon arrival in St. Louis, the defendant wanted her to get money from a porter at a hotel. She refused and he knocked her out of the car. Her sister offered to borrow the money "to keep him from beating me up".

During March 17, 1964, their first day in St. Louis, she engaged in four acts of prostitution and gave the money to the defendant. On March 18, 1964, her earnings were $90 which she gave to the defendant. On March 19, 1964, she gave the defendant all the money that she earned and received a beating from him. "He took it away from me after he almost killed me; he just stole it." He beat her and kicked her so that she had to go to the hospital.

The defendant did not testify. The only testimony presented on his behalf was that given by his mother, Mrs. Clyde Wilkerson, who testified generally with reference to her son and the three women leaving her home in Little Rock and apparently going to St. Louis, Missouri. She testified that she attempted to talk her son out of going, and that when they left her home Miss Stone was driving the car.

Defendant's first contention on appeal is that the court erred in permitting the defendant's wife to testify against him. The general rule prohibits the testimony of one spouse against the other on the ground that such prohibition would promote peace in the family, not only for the benefit of the members thereof but for the benefit of the public as well. Hawkins v. United States, 1958, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125. Defendant concedes that there is an exception to such rule in that where the wife is the victim of the criminal act with which the husband is charged, the privilege does not apply. Wyatt v. United States, 1960, 362 U.S. 525, 80 S.Ct. 901, 4 L.Ed.2d 931. Defendant's contention would make an exception to the exception, his position being that where there are multiple victims of a single criminal act (the simultaneous transportation in interstate commerce of a number of women in the same conveyance constitutes only one offense against 18 U.S.C.A. § 2421, Bell v. United States, 1955, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905), one of whom is the wife of the defendant, she should not be permitted to testify against her husband over his objection where her testimony necessarily relates not only to the criminal act as it affects her, but also to its commission with respect to the other victims. Citing no authority for his contention, defendant argues that the exception noted in Wyatt, supra, should not be extended to the instant case; that in Wyatt the wife was the sole victim. Defendant contends that the reasons for the Wyatt exception to the exclusionary privilege are wholly absent in the case at bar; that there were two other witnesses who testified to the same material facts for the government here, thus making the wife's testimony unnecessary; that Beverly Wilkerson's testimony was not only voluntary but "given with obvious relish"; that it was highly prejudicial, weighed heavily against the husband on the issue of his intent in coming to St. Louis, and should not have been received. We see no reason for the creation of defendant's exception to the exception and as stated, he is unable to cite any holding in support thereof. The wife in the instant case was one of three victims of the defendant's unlawful act. We see no justification for excluding her testimony merely because the government could probably have established commission of the crime through the testimony of the other two victims and on the ground that the wife's testimony would be cumulative and overly prejudicial to the defendant. We find no merit in defendant's first contention.

Defendant's next contention is that the court erred in refusing to give his requested instruction No. 4, which limited the testimony of the defendant's wife to her own illegal transportation. Requested instruction No. 4 was as follows:

"The Court directs you that the testimony of Beverly Mae Wilson can only be considered by the jury as evidence of an illegal transportation of Beverly Mae Wilson and can in no way be considered by the jury as evidence of any illegal transportation of Earnestine Brady or Mary Jean Stone."

As already indicated, the trial court limited the government in its examination of Beverly Wilkerson to "matters between her and the defendant in this case". The government's direct examination was so limited. On cross-examination, the then counsel for the defendant did ask for and obtain minor inconsequential testimony regarding Mary Jean Stone. The government did not pursue such testimony on redirect. Under the circumstances, we find no error in the court's refusal to give requested instruction No. 4.

Defendant's third contention goes to the sufficiency of the evidence to justify his conviction. We have read the...