This is a motion in arrest of judgment. Defendants have been indicted and convicted of a violation of section 3 of the immigration aсt of 1907 (Act Feb.-20, 1907, c. 1134, 34 Stat. 899 [U. S. Comp. St. Supp. 1907, p. 392]). The material portion of that section is as follows:
“That the importation into the United Stаtes of any alien woman or girl for the purpose of prostitution, or for any other immoral purpose, is hereby forbidden; and whоever shall, directly or indirectly, import, or attempt to import, into the United States, any alien woman or girl for the purpose оf prostitution, or for any other immoral purpose, * * * or whoever shall keep, maintain, control, support, or harbor In any hоuse or other place, for the purpose of prostitution, or for any other immoral jnirposo, any alien woman or girl, within three years after she shall have entered the United States,*992 shall, In every such case, he deemed guilty of a felony, and on cоnviction thereof be imprisoned not more than five years and pay a fine of not more than five thousand dollars.”
The indictment сontained four counts. The first count charged the defendants with importing into the United States a certain alien woman •for the purрose of prostitution. The second count charged the defendants with keeping and harboring such woman in a certain house in thе city of New York for the purpose of prostitution within three years after she entered the United States. The third count charged that the defendants imported such woman for an immoral purpose, to wit, concubinage. The fourth count charged that they kept and harbored her in said house for such immoral purpose. The jury found the defendants guilty under the second count only. The verdict, therefore, establishes that the defendants kept and harbored such woman in a certain house for the 'purpose of prostitution within three years after she entered the United States.
The defendants proved on the trial that they were arrested while living at such hоuse, and while keeping there such alien woman, and were charged before the Court of Special Sessions of New York with thе offense of keeping a disorderly house. The defendant Esther Palan pleaded guilty, and was sentenced to one month’s imprisonment. The defendant Samuel Palan pleaded not guilty, was tried, convicted, and sentenced to six months’ imprisonment: The defendants sеrved their respective terms. The defendants’ counsel, on the trial herein, moved to .direct the jury to acquit on the counts for keeping and harboring, on the ground that they had already been convicted and punished for that offense in the state court. I deniеd the motion at the trial, stating, however, that if the jury convicted the defendants of keeping and harboring I would take the question under consideration on a motion in arrest of judgment. Such motion has now been made.
It is well settled that every citizen of the United States is а citizen of two sovereign governments, the state in which he lives and the United States, and that certain acts may constitute an offеnse under the laws of each government. Fox v. Ohio,
I do this the more readily because it seems to me that the constitutionality of the portion of the act of Congress under which this conviction has been obtained is doubtful. I have no doubt of the power of Congress to make it a crime for any person in this country tо import into it an alien woman for an immoral purpose; but the provision under which the conviction has been had in this case mаkes it a crime for any person to keep or harbor in any place for any immoral purpose any alien woman within three years after she shall have entered the United States. The statute makes no distinction between alien women of previous good character and those of bad character. They may have been of good character before coming to this country, so that there was no legal impediment to their entrance upon their arrival, and may have continued to bе such for nearly three years thereafter. It is even immaterial whether the man knows that such a woman is an alien. By the provision of this law, if any man, a citizen of this country, forms illicit relations with an alien woman of previous good character, say two years аfter her entrance into this country, he is liable to be punished by imprisonment in the state prison for five years, and to be fined $5,000. Obviously, such an offense could not be punished by Congress if the woman were not an alien. It would be a matter exclusively for state legislation. Thе simple question therefore is: Does the fact of the alienage of a woman enable Congress to pass a law punishing a man criminally for entering into illicit relations with her. I doubt it. As the point has not been raised or argued in this case, I have formed and exрress no definite opinion on the subject; but, if I had not concluded, upon the grounds already stated, to suspend sentence in this cаse, I should have felt it my duty to give the question of the constitutionality of the provision of the act under which this conviction has been hаd careful consideration before sentencing the defendants.
Sentence is suspended in this case, and the defendants released from further detention.