*2 BINGHAM, WILSON, Before MORTON, Judges. Circuit WILSON, Judge. appellant Dis- was convicted Massachusetts under trict Court section (18 § Slave Traffic White Act USCA appealed 398), court. much section of the un- So appellant indicted, der which the “Any plies case, reads as to this follows: knowingly person transport or who shall * * * transported, cause in inter- * * * foreign commerce, any wo- state or purpose prostitu- for the man or any debauchery, or tion or immoral purpose with the intent and purpose, or compel entice, or induce, sueh woman up prostitute herself to become debauchery, engage in other im- or to ** * * * * up- practice; shall moral ” * * * * * * punished. ho conviction unlawfully, was indicted for knowingly, feloniously willfully, trans- Butz- Elizabeth Martin from one porting Pennsylvania Boston, Mass., “for town and with in- purpose prostitution, compel induce, hospital operation tent sent her to a purpose entice for an such, Against objection prostitute govern- and to some kind. woman to become engage proof ment practices.” did not in other immoral offer the nature of the operation. government Counsel at- appellant assigned as.errors: *3 tempted it, apparently comment for- to 1. The Court erred in the admis- District getting offered, was the not evidence was sion the and exclusion of evidence at certain by no the court the that reminded at timie trial, particularly by his as more appears testimony was in the ease. bill exceptions. exceptions The to the the admission of refusing 2. The to District Court in erred testimony girl ex of the and the Wheeler make requests rulings, appears certain and as inquiries clusion the answers to certain by exceptions. also his bill of her, also trial refusal of the the 3. The District Court erred in instruc- its give jury requested to by the the instruction to given by tions appears his bill as appellant’s relating ad counsel of exceptions. alleged confession, mission of the exceptions by assignment covered doubt, are without definition of reasonable chiefly of errors the appellant and on which merit; give but the refusal certain re disclosing relies prejudicial as are: error quested proof as to the neces instructions (1) alleged confession; The admission sary to convict under the indictment raises (2) of certain admission of a evidence and, more questions, in serious view of physieian treating testified who the Mar- charge in the indictment and girl; (3) tin the exclusion evi- of certain requested we think instructions places as to by dence where a witness given. have been Margaret name of “worked”; (4) Wheeler appears by the admissions the refusal to certain instructions re- pellant at the police interviews at the station by quested appellant counsel for the as to the Pa.; had Easton,. that he lived proof necessary for conviction under the in- young met there Mar- woman Elizabeth dictment; (5) (a) to so much of the tin, familiarly Betty Martin, known as judge’s charge as related to admission of lived there her as man wife for had with alleged confessions; part (b) to that of the nearly year; “in was the life” she judge’s charge which he de- stated lies; there, by engaged as it those in the termed string (e) fendant told a practice prostitution; June, that in part judge’s charge in which stated he they left Easton for automobile, Boston in an appellant girl married Martin stopping night Bridgeport, Conn., over at prevent her testifying him; (d) to they registered wife, where man as part judge’s charge he arriving they registered after in Boston as you agree you said at the close: “If me, with Arlington Hotel, man wife at where guilty. you will If, however, man they relations; continued illicit their agree me, your right do not it is du- Boston, arriving some time after met he ty guilty.” find him acquaintance by the street an name of Schwartz, showing Easton, whom had evidence met in a violation of get him the Martin provisions of the White asked where could Slave Traffic Act chiefly prostitution into a house of form Boston where in the of admissions to sev “work,” practice police by eral she could appellant officers whom is termed engaged it, to his those and was -a knowledge referred to interviewed house Canton street murder and another on Dover of one Samuel Reinstein a Boston street; taking hotel, he admitted corroborated her one some extent the wit Margaret places morning calling each ness Wheeler. We think these for her the tes timony police night; his ear at about 11.30 at her properly officerswas ad mitted, question earnings in this business were from $50 whether it was voluntarily was, per week, brought rule, under $75 made left on federal she properly jury. room, though submitted in their Wilson v. dresser he denied taking 16 Ct. of it. Hale v. United practice This continued about the until 25 E.(2d) murder, they of the Reinstein re- time when In view of conclusions Easton. At some prior hereafter turned to time reached, unnecessary it is Court, to comment on the trial District exception testimony married, though appears the admission of the rec- it were specifically of a doctor who treated Martin and ord does diselose when the particularity under sufficient offense According his ad- place. marriage took unnecessary de- we think they the married mission, were objection on case, cide in as no June, 1929, nor when Boston in came to ground the introduction raised to attor- assistant district appeared before the support of this evidence that was received only reference September. ney particular allegation, nor the form one of marriage is in indictment, allegation in the form and the cross-examination police officers, who in supported set forth indictment is marriage certificate saw testified that he Hays pre- the evidence. But court, see in the state shown to States, supra, in which following October. case hearing sumably charged one “with intent count *4 by the no decision there has been While coereq said then and there induce directly interpreting the Supreme act Court woman, intending that he in- she should of sec respect, so much this wo think in engage prostitution, duced in and coerced to one quoted 2 above describes tion debauchery, practices”; immoral and other viz., transportation offense, of women alleged a count and under it was “that second all of any for girls interstate in commerce persuaded, same date defendants of purposes The therein. enumerated the fense, therefore, induced, wo- enticed, the same and coerced alleging may charged by be City transported Oklahoma man be from transportation or more for two that the was Wichita, purpose Kansas, with the and in- statute, if in purposes set forth .engage tent to induce her to in and coerce being alleged ob conjunctive, without debauchery, prostitution, other immoral duplicity. ground of jectionable on the practices of Kansas.” within the state at and (C. A.) (2d) 22 F. States C. Blain v. United expressly was In this case the issue 393; Bishop’s (4th Ed.) New Crim. Pro. allega- raised, Hays, counsel for that the 436; (D. v. Brand 1, Vol. United States § transported girl for tion that was Ackley (C. 847; C.) 229 F. v. United States inducing engage purpose prosti- her to 217; States, 200 F. v. United C. Crain out, debauchery tution and was made 625, 952, 636, 16 40 L. Ed. S. Ct. S. allegation transported was that the that she Hays 470, 242 States, v. S. U. engage her in “other immoral induce 484, 192, 194, 442, 486, 37 S. 61 L. Ed. Ct. practices” by generality in- reason of its 1917B, 502, 1168. 1917F, L. R. A. Ann. Cas. although offense; and, charge sufficient prostitution and im What constitutes “other appeared opinion in the from the rendered practices” is moral defined United Appeals, 231 <fasein Court of F. Bitty, 393, 396, 52 208 28 S. Ct. v. trans- that the evidence showed 543. Ed. inducing solely for portation prohibit aim in of the act is Hays, con- have sexual intercourse transportation girls of women and terstate Hays Supreme affirmed viction of sex any purpose associated with for immoral Also see United States Court. Huffman v. punish of intercourse, Tial and not to A.) 259 F. 35. purpose fender for consummation respondent That this and the Martin transportation undertaken, which the for way intercourse on the had sexual woman solely powers of the within the arriving is not Boston after denied. 227 Hoke U. states. jury was instructed this alone 523, 43 33 L. R. constitute forth the offense set sufficient 1913E, (N. S.) It is A. Ann. Cas. statute, pointed was not out in the but it transportation commerce in interstate charged that this was not the offense gives prohibited acts status a By indictment. this instruction we necessary prove offense. It federal jury must have been misled as to ihink the any consummated, purposes were actually charged in the indict the offense transportation if the intent which the though the evidence Even warranted ment. prohibition of undertaken within the respondent could not be convicted of it, the Brand, supra, page Act. v. United States charged. he was not with which an offense F.; 850 of v. Rizzo United charge indictment F. 51. substantially language appellant is knowingly transported transportation As to whether interstate pur “for inducing enticing the Martin to Boston purpose of prostitution with the intent engage practices,” pose in “immoral if woman to induce, compel her purpose purpose entice alleged, that were sole sets forth other engage While the prostitute, and to reminded the become opinion as to practices.” the faets should control immoral yet theirs, appears record it transporta Assuming the offense of more than once informed them that inducing, enticing, purpose tion for the finally respondent liar, was a engage in compelling-the (cid:127)and Martin that, they them if believed as he instructed sufficiently set practices” other “immoral did, they guilty; should forth, record the evidence as disclosed though not, that, he added did it was if finding that did warrant this ease right that, duty acquit him, their purpose transporting the Martin wo if of his had reasonable doubt “induce, or com man to Boston was to entice guilt, it in his favor. resolved pel” prostitute, or her to “in become calls connection counsel duce, compel” (italics supplied) entice charge, parts our attention to re her to have intercourse with the sexual parts expressly contends render the spondent. anything appears So far ap excepted extremely prejudicial record, they illicit could have continued pellant, particularly comments certain already Easton, relations and she was also personal therein on counsel’s characteristics “in the life” there. Van Pelt v. United *5 displayed ease, of the and tend trial (C. 346; A.) 240 Hunter v. C. F. ing prejudice jury him with the and there 55, F.(2d) United States 45 73 by prejudice appellant. Withrow v. A. R.L. F.(2d) 1 Wil Though given, prop under none were Bay City, liams v. West 395, 119 Mich. 78 jury might er up instructions the found have N. W. 328. on respond evidence in ease that commenting on skill counsel’s as a bring purpose did her Boston for the ent player, football judge jury trial told the understanding and with the that she would that he was the player most skillful of his voluntarily there; prostitution houses.of enter day straight “in rushes, twistings and his and but, view of instruction as to the ef turnings,” added, his and just “he as skill- having fect of sexual intercourse with the now, ful and even so, practice more Boston, woman in in order to con law, straight of the rushes, his and his vict, required were not consider whether twistings turning.” and his jury What the transported purpose was she prostitution.” “for the may have inferred from comparison this isit did, in If without difficult tell from type. might cold de- proof necessary struction as estab pend on the inflection manner of ex- may lish offense, they this of the not element pression. given any have consideration the claim of Counsel, however, complains appellant, viz., entering that her houses tri- judge stop not prostitution here, al did pro but, Boston was her own after com- paring counsel to posal great actors, arrival; after and, some may while he Henry Booth, Salvini, Irving, have aided said to the making inquiries her as to jury: noticed, “You gentlemen, where probably houses, she could that was day how the purpose on first not for trial he transported light which he her made everything, may referred jury Boston. faets While have here as be escapade if it were like him, especially an college lieved view of of wild emphatic expression taking student in presiding to a judge hotel and night respondent’s spending as to veracity, with lack of You he was her. remember yesterday how entitled to have the whole changed, under the his issues indict attitude fairly presented jury. ment how the tone of his wonderful changed, voice deep tones how were when speak- he was exceptions parts ing client, about how fierce tones judge’s charge, however, sig- have broader were and 'when sarcastic he speaking was than the mere excepted nificance statements police about officers. Gentlemen, appellant Counsel for strenuously to. ar- acting. all Do not be misled it.” gued before this court that Judge the District overstepped Again, referring appellant’s bounds which a fed- testimony within judge prius may coming at nisi for express opin- eral his reason June, to Boston 1929, brought faets, argumentative and in an ion that he the Martin to Bos- impressed unreasonable manner for a vacation —the upon ton vacation— n jury pellant that the was that came he for a such an extent he and that he loved her marry did fair have a intended to impartial judge her, trial. trial said:
827
L,
626, 627,
919,
with
14 S.
love
Ct.
Ed.
“His statement
Fuller, speaking
court,
for
Chief Justice
brought
her on Boston
this
brought
said:
vacation. Mr.
has
the sacred
Lewis
be-
ease,
has
word
‘love’ into
any system
“It
is obvious
filth.
filth,
mud and
it with
with
smirched
trials the
of the trial
influence
you
unworthy
him.
believe
It was
Do
on
necessarily
properly
perfectly plain
story, gentlemen? To me it is
great weight,
lightest
and that his
word or
it is a lie.
deference,
intimation
received
may
controlling.
entirely
prove
Hicks v. United
man
stand —this is
“This
my
giving you
14 S.
I am
you, gentlemen, but
right
man
Ed. 1137.
of this case
do—tins
circumstances
opinion, as
have a
from,
apparently
indignation
aroused
string of
told a
lies
stand
degree;
learned
uncommon
ended.
until
time he
he started
minute
indignation
expressed
in terms
my opinion
That
Ms
regard
Did he which wore not
binding
you, gentlemen.
consistent
due
right
bring
duty
a va-
her on here for
exercise
girl,
th©
love
Arlington— independent
premises, or
Hotel
stop at the
cation —and
during
practi-
circumspection
with the
and caution which
know where
went
she
* *
day?
daytime
every
judicial
That was
cally
should characterize
utterances.
entire
man who loved a woman
of a
the vacation
necessity
special
enforc-
“Whatever
marry!”
going to
rigor
ing
may
in a
law in all its
the record
reason which
And, for some
particular quarter
country, the rules
judge, in instruct-
disclose, the trial
does not
by which,
which,
and the manner
the ad-
*6
marriage be-
jury in
the
ing
reference to
the
conducted,
justice
ministration
be
of
should
girl, said
appellant and Martin
tween
the
the
argumentative
everywhere;
are the
same
come,
Fore-
now I
Mr.
jury:
“And
the
thrown into
matter
this sort should
be
of
not
degrading
most
gentlemen, to the
man and
by
judicial
the
officer
holds
scales
the
who
mar-
thing cowardly. Ho
whole
of
part
the
—
them.”
being
merely
prevent her
the
ried
Hickory
States,
United
160 U.
In
v.
mean-
testify
depth
Mm—a
of
able to
408,
327, 333,
474,
40 L.
425, 16 S.
Ed.
in
no words
which
have
cowardice
ness and
judge
case the trial
denounced
tes
which
the
this,
my disgust
explain
All
for.
properly
timony
Judge, later
perjury,
accused
you to consider.”
is
however, gentlemen,
Justice,
Chief
said:
denunciation
White
“Such
on the remarks
commented
have not
is without le
We
of
accused
the
government
opening
gal
the
States,
of counsel
warrant. Allison United
160
v.
since, although
ease,
ex-
dosing of the
203,
252,
16
395.
U. S.
S. Ct.
40 L. Ed.
In-.
by
time,
are
covered
cepted
deed,
instruction,
giving
this
rise to
besides
They appear to
assignments
error.
error,
also,
if possible, more mark
overstatements, and edly wrong
unintentional
implications
from
have been
which it
judge’s
of in
sufficiently
care
taken
conveyed
jury.
substantially
were
to the
It
said
charge.
‘The
them,
killing-
circumstances
toas
bribed,
cannot
concealment
he
but the de
charge
in
covers,
addi-
was brief and
be;
you
fendant
consid
can
therefore
must
objected
portions
to,
more
little
tion to
outweigh
er that
circumstances
his tes
these
general
usual
instructions
than the
duty
your
timony, and it
is honce
convict
respective
court
functions
States,
him.’ In Stair v.
supra,
United
ubi
by
proof,
wbat meant
rea-
burden of
speaking through Mr.
Fuller,
Chief Justice
doubt.
sonable
this court
attention
fact
that
called
to the
judgments
eases
where
numerous
are
power
limitations
were
on the
of a fed
by
reversed for remarks
a federal
been
have
court,
commenting
the facts of a
eral
on
ground
his
judge
exceeded
instructing
case,
jury;
a
limitations in
when
opinion
expressing
prerogative
implied
very
herent
from the
nature
impossible, however,
from the
facts.
Reynolds
judicial
United
v.
office.
dividing line
find the
between what
cases to
145,
244,
25
States,
Ed.
objectionable
not,
lay
and what
Waite,
speaking through Mr.
Justice
Chief
by
rule
which
hard and fast
a
down
subject:
also
the same
this
‘
said on
court
placed
can bo
or
cases
one side
*
doubtful
*
*
Every appeal
to the
the court
dividing
other
line.
prejudices
jury should
passions
* *
*
is the
In Stair v.
States, 153
promptly rebuked,
United
828
imperative duty
reviewing
training
analyzing testimony,
expe-
court to
way.
determining
take
* * *’
rience
wrong
credibility
care
not done in this
wit-
resting
duty
nesses,
personal
Admonished
and the influence
inter-
say est,
regard,
obliged
bias,
influencing
on us in
prejudice
we feel
have in
witnesses,
charge
permitted
jury in
which we have considered
be
assist the
separates
determining
bearing
impartial
crosses the
line which
evidence has
what
a
judicial
re-
disputed
ease,
exercise
them
function
issues
and aid
gion
weighing
partisanship
evidence, taking
where reason
dis-
care that
turbed, passions
jurors
excited,
clearly
are
prejudices
own
understand that it is their
necessarily
finally
play.”
called
what
determine
into
facts are.
To this end a
language
Other
instances
may
federal
inform
courts
instructing
the trial
has
impression
certain evidence makes on
judi
overstep
held to
been
the bounds of the
having
weight
mind. But
in mind the
prerogative may
cial
in Rudd v.
found
jurors
ordinarily
opinion
914;
(C.
A.)
United States
C.
173 F.
especial
presiding justice, take
(C. A.)
F.(2d)
Weare v. United States
1
C.
in-
care
is their
understand that it
617, 618;
A.)
(C.
Cook v. United States
C.
finally
dependent
de-
judgment which must
F.(2d) 833;
(C.
14
Cook v. United
C.
States
unduly
issues,
the factual
and are not
termine
A.)
50;
F.(2d)
18
Barham v.
States
United
influenced
court.
(C.
A.)
F.(2d) 835;
C.
Buchanan v.
496;
F.(2d)
United
of facts
But a statement
Wallace v.
F.
discourse,
asser-
argumentative
repeated
a
respondent
witness
tion that
telling
truth,
or indirect
direct
appear, however,
It will
from an exami
instruction
in a criminal
eases,
judges
nation
federal
may
sufficiently neu-
ease is
not be
are
all
in accord as to
bounds
by reminder
it is for the
tralized
have
overstepped.
been
will be
Dissents
say.
found
cited,
in several of
eases above
also see Simmons v. United
142 U. S.
gives
us
before
full
That the record
12 S. Ct.
Graham
be-
picture
in the trial
fair
what occurred
*7
S.
low,
believe;
to
can-
we are reluctant
but we
319; Horning
v. District not
our
on conjecture,
base
or on
conclusions
Columbia,
of
U.
which
see
ease
probably
At
what
the close
occurred.
dissenting opinion
page 139,
on
41 S. Ct.
jury, counsel for
instructions to
the
the
termine what proper it is evidence We think trial should hesitate jury to consider opinion under expressing rules in guilt established on the re of a by evidence. should also He reason spondent case, though may a criminal unnecessary decision; It to the it is evi- on the Ms permitted to bo parts of the based considerable extent discussion Argumentative dentiary facts. charge objection at was made no proof, or infer- the witnesses, of evidence as the effect taken; ignores exception trial no it acts of to be drawn ence a,t agreed by argument facts counsel ease, are respondent in a criminal or of the exceptions; dis- and it these seems me place from universally recognized as out tinctly judge. unfair to the trial bench. judge’s counsel which comment on underlying of our principles One of the additional criticized read should be! justice in scales of jurisprudence is freely mind, fact conceded at argu- bal- held in even trial a cause tho had ment, and the counsel tho pride judge. our presiding ance friendly were stu- been on terms since a re- and laws under Constitution our together. pleasantry dents It was obvious though ease, spondent in a criminal understood, based, everybody heard as who it impartial trial. a fair and is entitled If friendly two. between the relations delay regret exceedingly in the We joke rough, thought too the counsel will en disposition ease, of this final unfairly client, he it bore Ms judgment in sue from a reversal un- should have so the time said at misleading Court; instruc District but the corrected. fairness, any, if could been have constitute given as what would alone tion no objection took But no such made the failure under the offense tho exception. un real issues to instruct the al- counsel, Tho remark “That is final indictment, offense der the described in verdict, your directing equivalent most charge together parts judge’s reply, “That is what Honor,” and the referred, resulted, wo we have jury to which do,” which are referred to meant to im thinlc, depriving during a opinion, were bench made at the our partial trial which he entitled judge. and the conference between the counsel laws, case should and the Constitution argu- This was counsel admitted for a new trial. bo remanded ment. The talk was meant to be “off the rec- re- District Court is ; jury’s ears, it was ord” not intended versed, aside, the case the verdiet set nothing to indicate that it a new remanded to court for trial. not, certainly heard them. If did no objection harm. Counsel no re- made Judge MORTON, (dissenting). exception. mark at time and took Tt no part bearing and has the trial no foregoing opinion much of the With so questions before us. holds that tho bo set conviction should jury was not instructed aside tho because *8 clearness to warrant a with sufficient transportation guilty the interstate verdiet Cor woman have been undertaken indict- purpose specified AMERICAN CO. OF unlawful v. SURETY tho MAROTTA NEW YORK. agree. ment, I and the As defendant living together already as man No. 2647. woman were journey began wife and made before Appeals, First Circuit. Circuit Court journey relationship, in that acts of sex- April 4, 1932. following during it or ual intercourse than in usu- much would be less indicative guilty pur- statute of ease al necessary pose for conviction. While the judge correctly begin- tho stated law the ning charge, point of Ms out the did not important just to, distinction referred contrary strongly intimated to the directly them, if indeed he tell did not acts sexual between the de- intercourse during journey and the tho fendant in Boston or after their arrival would be a “commission the offence.” tho rest I dissent. From