220 F. 764 | 4th Cir. | 1915
The plaintiff in error (defendant below and herein so called) was indicted in October, 1913, for a violation of the White Slave Traffic Act. The indictment contains three counts, charging the defendant (1) with unlawfully transporting in interstate commerce, for the purposes named in the statute, and aiding in such transportation, a woman under the age of 18 years; (2) with unlawfully procuring, and aiding in procuring, a railroad ticket to be used for the transportation described in the first count; and (3) with unlawfully persuading and enticing the woman in question to go in interstate commerce from and to the places and for the purposes stated in the preceding counts.
At the trial in May, 1914, the defendant was found guilty as charged in the third count of the indictment, and not guilty on the other two counts; and the sentence thereupon imposed was imprisonment for three years in the penitentiary of West Virginia.
The principal question presented by the assignments of error is whether the evidence sustains the verdict of conviction. To appreciate this question, it is necessary to state with care and somewhat in detail the material facts to which the witnesses testified.
Although he repeatedly and stoutly denied it, we must assume, under the verdict of the jury, that the defendant seduced Mary Forbes some time in the summer of 1910, when she was between 15 and 16 years of age. After this, according to her testimony, they cohabited nearly every day for some months, and frequently afterwards. On the 8th of July, 1912, after her school closed, Mary Forbes went to Barnesville to spend the vacation with her uncle and aunt, Mr. and Mrs. J. T. Forbes, expecting to stay with them until school opened again about the 1st of September, She traveled there on a pass issued the 20th of May, and was accompanied by her grandfather and a young lady and by the defendant. After their arrival in Barnesville, and on the evening of that day, she testifies that he had connection with her. Instead of remaining in Barnesville until September, she returned to McMechen on the morning of the 31st of July, under circumstances which will presently be related.
It appears that her uncle, Michael Welsch, had gone a few days before to Wilmington, Del., to attend the funeral of a relative. He had been suffering for some time from a serious ailment of the face or jaw, and on that account stopped in Baltimore on his return to consult a physician. He was advised that a surgical operation was neces- . sary and accordingly went to a hospital for that purpose. He sent a postal card to inform his wife of this situation, and she made preparations at once to go to Baltimore and take with her Bernice and the defendant. This was on the 30th of July. As she wanted some one to care for the house during her absence, she requested the defendant, who was going to Barnesville that afternoon, to notify their relatives of the coming operation and also to attend some meeting or banquet of a fraternal organization, to ask Mary to return home, and, as she knew ■her pass had expired, gave him a dollar to give to her to pay her fare back on the cars. 'She did in fact return to McMechen the following morning, reaching the house just as her aunt and sister and the defendant were leaving for the train to Baltimore. They reached Baltimore some time after midnight, and learned either then or the next morning that the operation upon Mr. Welsch had already been performed and. was successful. Thereupon, according to the testimony, the defendant went back that night to McMechen for the purpose of sending some money to his brother to pay his hospital bill and other expenses. He arrived in McMechen early the next morning, the 2d of August, and sent a money order for $100 about noon of that day.
When Mary Forbes got home Wednesday morning, as above stated, there was some conversation in front of the house where she met her. aunt'and the others as they were leaving. She said in substance that although she had come home she had promised to go back to Barnesville for a picnic which was to take place on Saturday. Her aunt thereupon told her that she could go back that afternoon or remain until Saturday and return with- some of the relatives who were going to the same picnic. She was also told that another pass had come for her which was on
Again it must be assumed, under the verdict of the jury, however improbable her story of what occurred on Friday morning, especially in view of the testimony of Mrs. Martin Welsch and Agnes Schuyler, that the defendant, upon reaching McMechen early that morning, went almost at once to Martin Welsch’s house, entered it through the kitchen, aroused Mary from sleep, and induced her with some difficulty to go over to Michael Welsch’s house, where they had sexual intercourse.
■On Saturday morning she went to Barnesville by train; the defendant and several others going with her. She remained there then until about the 1st of September, when she came back to McMechen and entered upon her last year at school In May, 1913, she graduated from the high school, and then remained at McMechen until about the 1st of August, when she went to Barnesville, and there on the 19th of that month.gave birth to an illegitimate child, of which she avers the defendant is the father. She says that during this year also the defendant had frequent intercourse with her. In this connection it may be noted that the testimony is positive and wholly uncontradicted that, up to a short time before she became a mother, none of the relatives had the slightest suspicion of anything improper between her and the defendant.
With this general outline of facts which were undisputed, or presumably found by the jury, we come to a more particular account of what occurred in connection with the return of Mary Forbes on the 31st of July, 1912, from Barnesville to McMechen. Bearing in mind' that the defendant was acquitted of the charge of transporting her back to her home, or aiding in such transportation, and also acquitted of the charge of procuring a railroad ticket, or aiding in procuring the same, to be iised by her in returning to McMechen, it remains to consider whether there was any evidence which warranted the jury in finding the defendant guilty of that persuasion and inducement which the act denounces and of which he was convicted. We do not see how anything more can be claimed by the government in this regard than the testimony of the girl herself. After telling of her seduction by the defendant two years before, of the illicit relations which thereafter continued between them, of the circumstances connected with her trip to Barnesville on the 8th of July, and the intercourse there on the evening of that date, she speaks of the occasion of his visit to her on the 30th of that month, and this is what she says, and all she says, regarding what took place at that time:
*768 “Q. You say he came to see you there on the 30th? A. Yes, sir. Q. How long did he remain at that time? A. Well he drove down in a buggy, and he .asked me to take a drive with him, and we drove down to Bailey’s Mills; I don’t know just how far it is below there. Q. Did he have intercourse with you at that time? A. No; sir. Q. Then you say you went back to McMechen from Barnesville the next day, the 31st? A. Yes, sir. Q. In what state is Barnesville? A. In Ohio. Q. Please tell the jury why you went back to McMechen. A. Mr. Welsch come out there in the buggy, and he asked me to take a drive with him, and I went with him, and he told me that my uncle was in the hospital in Baltimore, and my aunt wanted me to come down home. Q. You mean come back to McMechen? A. Yes, sir. Q. State whether or not he furnished you any means of transportation to go back to Mc-Mechen? A. I told him I had nothing to come back to McMechen on, and he said he would give me money, and he gave me a dollar. Q. What kind of a dollar? A. A silver dollar. Q, Did anybody else see him give you that dollar? A. No, sir; nobody saw him give it to me. Q. Did anybody see you have that dollar? A. Yes, sir; my aunt, Mrs. J. T. Forbes. Q. Then you went back to McMechen on the 31st day of July? A. Yes, sir.”
It will be observed that she does not here say that she told him whether or .not she would go home as her aunt had requested. However, on her redirect examination, after the cross-examination was concluded, the following question and answer are shown by the record:
“Q. Did you tell him what day you would come from Barnesville to Mc-Mechen after he gave you the dollar? A. If I remember right, I believe I told him if I could I would be down in the morning on the 8 o’clock train.”
This covers everything testified to by her as to what was said or done by the defendant, or by herself, on that 30th of July, relative to her going home the following day, and no other witness gives a word of material evidence upon that subject. She does not say that he asked or advised her to return, or even intimated a desire that she should do so. Her own version of the occurrence excludes the idea of any wish or hope expressed by him that she would comply with her aunt’s request, but represents him as simply communicating that request to her, and giving her the dollar which her aunt had sent by him to pay her fare back to McMechen. Nor were any circumstances shown in connection with his visit to Barnesville that afternoon which permit an inference, not justified by her own testimony, that he made the slightest effort to.have her do what her aunt requested. For aught that appears, either directly or indirectly, his attitude in the matter was one of indifference. It is only repeating to say that according to her own testimony he attempted in no manner to influence her one way or the other.
Taking into account everything disclosed which bears upon her going back to McMechen, and her reason for returning, it is impossible for us to discover, in the words or conduct of defendant, anything resembling that persuasion and inducement which the act seems clearly to contemplate, and which appears to us essential to constitute a violation of the provision in question. The only reasonable deduction from the proofs is that the girl went home simply and solely because she felt that under the circumstances she ought to go there. The fact that the message from her aunt was brought to her by the man who had seduced her, and with whom she had immoral relations during the previous two years, cannot be said to have at all caused her
“The gist of the whole offense turns upon the Intent of the party. At the same time, I feel compelled to instruct you that a person may have one or more intents and purposes in view when he does an act. One of them may be perfectly legitimate and perfectly lawful. At the same time he may have a further intent — that, from the circumstances growing out of the transaction, ultimately he may have an unlawful intent. For example, I instruct and charge you that if this defendant, Welsch, furnished the transportation to this girl to go from Barnesville to McMechen at the instance and solely at the instance of Mrs. Michael Welsch, because of the fact that her husband was to be operated on in Baltimore, and she wanted her to return there to McMechen, if he was simply the messenger to convey that and furnish the transportation, and had no other or further intent, then it is your clear duty to find this defendant not guilty; but if, at the same time that he had that purpose and intent, he had the further purpose and intent, after she was transported from Barnesville to McMechen, to renew sexual intercourse with her, if he had had it before, then it is your duty to find him guilty under this statute.”
Even if it be granted that this is not incorrect as an abstract proposition, we are nevertheless convinced that its application to the facts and circumstances of this case was liable to give and probably did give the jury a misleading impression, in that it left them at liberty to find the defendant guilty, indeed made it their duty to find him guilty, if they believed that he had the secret intention of profiting unlawfully by the girl’s return, although nothing whatever was said or done by him to persuade or influence her to do so. In other words, the jury were told in effect that his communication to her of her aunt’s request and giving her the money furnished to pay car fare, however suitably and properly he may have performed his errand, and however free his words and acts from any persuasion or inducement, should not be permitted to save him from conviction if they believed that he then had in mind that her return would enable him at some indefinite time thereafter to avail himself of opportunities for further sexual intercourse with her. We think this gave the jury unwarranted latitude and involved a construction of the statute which carries it quite' beyond its intended scope. And this view of the import of the instruction quoted is confirmed, in our opinion, by the inconsistent verdict which the jury rendered. Of course the fact that a verdict is altogether illogical is not of itself a reason for setting it aside, but the action of the jury in this instance, in acquitting the defendant of the charge of transporting the girl or in any way aiding in her transportation, while convicting him -of the separate charge of unlawful persuasion, indicates to us that the minds of the jury were confused and given an erroneous impression of the law and their duty by the instruction in question. If we are right in our conception of this statute, that the prohibited offense was not committed unless the girl’s return home was in some way brought about or influenced by the defendant’s wrongful intent, unless, in other words, she would not have returned except for such intent, it follows that tjíe jury should have been so instructed, and that the instruction actually given was misleading and prejudicial.
In further support of this conclusion it may be pointed out that the
It goes without saying that this statute should receive a construction which will make it efficient to accomplish its intended purpose, but it should not be so enlarged or extended by judicial interpretation as to take in transactions which, however reprehensible, cannot be reasonably regarded as within its aim and intent. The conduct of this defendant, which the verdict requires us to assume, in corrupting a school girl of 15, closely related to himself by blood and a member, of his brother’s family, was so treacherous and detestable as to class him with the meanest of criminals; but that gives no warrant for punishing him under the White Slave Traffic Act, unless his proven transgressions come fairly within its provisions.
In our opinion it has not been shown, and there was no evidence which would justify the jury in finding, that this unfortunate girl traveled from Barnesville to McMechen on the occasion in question because of any inducement of persuasion by the defendant, or because her return home was brought about by his unlawful intent and purpose respecting her; and we are therefore constrained to hold that the judgment of conviction must be reversed, and the case remanded for further proceedings not inconsistent with this opinion.
Reversed.