LANG et al. v. UNITED STATES, 133 F. 201

GROSSCUP, Circuit Judge (after stating the facts as above). The act of March 3rd, 1875, c. 141, 18 Stat. 477 [U. S. Comp. St. 1901, p. 1286], under which plaintiffs in error were indicted, was superseded by the act of March 3rd, 1903, the third

section of which reads as follows: “Sec. 3. That the importation into the United States of any woman or girl for the purposes of prostitution is hereby forbidden; and whoever shall import or attempt to import any woman or girl into the United States for the purposes of prostitution, or shall hold or attempt to hold, any woman or girl for such purposes in pursuance of such illegal importation shall be deemed guilty of a felony and, on conviction thereof, shall be imprisoned not less than one nor more than five years and pay a fine not exceeding $5,000” (32 Stat 1214, c. 1012 [U. S. Comp. St. Supp. 1903, p. 172]). The twenty-eighth

section of the act reads as follows: “Sec. 28. That nothing contained in this Act shall affect any prosecution or other proceeding, criminal or civil, begun under any existing Act or any Acts hereby amended, but such prosecutions and other proceedings, criminal or civil, shall proceed as if this act had not been passed” (32 Stat. 1220 [U. S. Comp. St. Supp. 1903, p. 183]); and the thirty-sixth

section reads as follows: “That all acts and parts of acts, inconsistent with this act, are hereby repealed” (32 Stat. 1221 [U. S. Comp. St Supp. 1903, p. 185]). It may be doubted whether the third

section of the act of 1903, reenacting in an enlarged way the third

section of the act of 1875 — both sections being unaffected by any repealing clause except the one above quoted — constitutes a remission of all penalties for violations of. the earlier

section committed before the passage of the act of 1903. On. that question, however, we express no opinion. It will be observed that

section twenty-eight of the act of 1903, provides “that nothing contained in this act shall affect any prosecution oi other proceeding, criminal or civil, begun under any existing act or any acts hereby amended.” The prosecution under review was commenced after the passage of that act. Counsel for plaintiffs in error would have us construe the twenty-eighth

section as if it read that nothing contained in the acts should affect any prosecution or other proceeding, criminal or civil, already begun, under any existing act. To make good their point, they must convince us that the saving clause was intended to save only prosecutions then pending. We do not thus interpret the saving clause.

The word “begun” as here employed, is not the preterit of begin, expressing that verb in its past tense; it is, in our judgment, the past participle, performing solely the function of a connective — the verbal adjective, qualifying any prosecutions in mind, pending or future, its sole purpose being to show that such prosecution is one under the act of 1875. It was not the purpose of Congress in the employment of the word “begun” in the connection here used, to provide that there should be no prosecutions under the old statute unless they had been already begun.

Congress presumably, was looking to the future, as well as the past. It meant that in the matter of importations of this character, there should be no interim of non-criminality. The amendatory statute only enlarged and tightened the preceding statute. No prosecutions could be based on the amendatory statute for acts done prior to Hs enactment; what Congress meant in the

section preserving the . _,.,t to prosecute under the statute was, that no prosecutions begun under that statute, whether they were then pending, or should thereafter be brought, should lapse by reason of this effort to enlarge and tighten the hold of the government upon this class of importations. It is to carry out this purpose that the word “begun” is employed, merely as a connective to identify a prosecution pending or to be brought, with the statute under which it is brought. . The other questions raised need little discussion.

The verdict, in our judgment, is supported by sufficient evidence; the correspondence that passed between the agent at Chicago, and the agent at Montreal, was admissible as a part of the res gestae — bearing on the fact of importation ; and the cross-examination of Lang, as to his incarceration in the New Jersey penitentiary, was not carried beyond permissible limits. ' Questions relating to the admissibility of evidence in criminal proseecutions, based on violations of the Statutes of the United States, are questions wholly within the general rules and law applicable to the conduct of trials, and not at all subject, except as state statutes or decisions may be persuasive, to the statutes or decisions prevailing in the particular state where the court happens to sit; otherwise each state would have a substantial

part in determining the manner in which the courts of the United States should enforce, not the law of the state, but the national laws. Chief Justice Cooley, in Clemens v. Conrad, 19 Mich. 170, laid down the rule covering the cross-examinations of witnesses in relation to their conviction and incarceration for crime, as follows: “The right to inquire of a witness on cross-examination whether he has not been indicted and convicted of a criminal offense, we regard as settled in this state by the case of Wilbur v. Flood, 16 Mich. 40 [93 Am. Dec. 203].

It is true that in that case the question was, whether the witness had been confined in state prison; not whether he had been convicted; but confinement in a state prison pre-supposes a conviction by authority of law, and to justify the one inquiry and not the other would only be to uphold a technical and at the same time point out an easy mode of evading it without in the least obviating the reasons on which it rests.

We think the reason for requiring record evidence of conviction has very little application to a case where the party convicted is himself upon the stand and is questioned concerning it, with a view to sifting his character upon cross-examination.

The danger that he will falsely testify to a conviction which never took place, or that he may be mistaken about it, is so slight, that it may almost be looked upon as purely imaginary, while the danger that worthless characters will unexpectedly be placed upon the stand, with no opportunity for the opposite party to produce the record evidence of their infamy, is always palpable and imminent. We prefer the early English rule on this subject. Priddle’s Case, Leach, C. L. 382; King v. Edwards, 4 T. R. 440; and for thq reasons which were stated in Wilbur v.

Flood.” The rule thus stated is reenforced by Thompson on Trials, § 458; Greenleaf on Evidence [16th Ed.] 461; Notes to Taylor’s Evidence, vol. 3, p. 978, and the cases there cited, and many other cases at hand. We are content to adopt this rule. It has done the plaintiff in error, in the case under review, no injustice; and if, in its application to the particular circumstances of future cases, any injustice be done, a correction thereof will follow under the right of a court of review to set aside the abuse of discretion by the trial court.