JOHNSON v. UNITED STATES, 215 F. 679

BAKER, Circuit Judge. Plaintiff in error, defendant below, was convicted of violating the White Slave Traffic Act, which makes it a felony for any one knowingly to— “transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce, any woman or girl for the purpose of prostitution or debauchery or any other immoral purpose.” One group of counts on w’hich defendant was held charged that he procured the transportation of a girl from Pittsburgh to Chicago for the immoral purpose of having sexual intercourse with her.

In another group the purpose laid was prostitution. Respecting the first group the evidence showed: That the girl, in financial straits at Pittsburgh, endeavored to reach defendant by long-distance telephone. That an employe of defendant answered, and to him she told her plight. That the next day she received a telegram, signed “Jack,” asking what she needed for expenses. That in reply to her answer she received a telegram reading: “I am sending you $75. Go to Chicago at Graham’s and wait until I get there.

Jack.” That she drew the $75 from the Postal Telegraph Company, purchased therefrom a ticket to Chicago, and traveled to that city on the Pennsylvania Railroad, and that defendant shortly thereafter had sexual intercourse with this girl in Chicago. No direct evidence was adduced to establish the authenticity of the telegrams.

But from defendant’s statement on the witness stand that he would not say that he had or had not sent them, from the fact that defendant on his arrival in Chicago called the girl by telephone at Graham’s, and from the fact as testified to by the girl that defendant at their first meeting inquired, “Did you receive the $75 I sent you?” the jury were warranted in finding that defendant was the author of the messages and the furnisher of the money for the girl’s transportation. ' On the evidence thus far cited, a suspicion might be entertained that the purpose of the transportation was sexual intercourse.

This evidence also is consistent with the theory that defendant had no sexual intent at the time he aided the girl in her travels. And the presumption of innocence would require the adoption of this theory if here the evidence stopped.

But the record further establishes that before aiding this girl defendant habitually indulged in promiscuous sexual intercourse; that this girl was a prostitute; that defendant first met her several years before in a brothel; that throughout the period of their acquaintance they maintained sexual relations; and that frequently defendant in his journeys about the country took the girl with him, or had her travel to meet him, and always for the purpose of sexual intercourse.

This additional evidence furnished a basis from which the jury could justifiably draw the inference of fact that when defendant furnished the transportation he did so for the purpose of having sexual intercourse with the girl after their arrival in Chicago, just as a jury may reject a defendant’s protestation of innocence in passing counterfeit when the evidence shows that prior to the act in question he had habitually or frequently passed other similar counterfeits. But a different situation, affects the prostitution counts. Telephone and telegraph messages contained no suggestion of prostitution.

The only fact is that several days after the girl’s arrival in Chicago defendant supplied the money to enable her to open and conduct a brothel. This fact might lead’to a suspicion that defendant when providing transportation had the intent to aid her subsequently in her profession. But criminal convictions cannot be allowed to rest on suspicion.

And th'ere were no supplementary facts like those that support .the sexual intercourse counts—no proof that defendant had ever been connected with or interested in brothels, or that prior to the act in Chicago he had ever aided this or any other girl to engage in prostitution. Against upholding the conviction .on the sexual intercourse counts defendant’s first insistence is that the intention of Congress was otherwise.

By noting current history we may be aware that the act, when applied to merely unlawful sexual intercourse, has been used as an instrument for blackmail or other oppressions; but that has. nothing to do with a judicial ascertainment of the meaning and constitutionality of the act when it was adopted. Reference is made to public debates as indicative of the author’s intent. But the writer of a bill may explain his purpose to his fellow members, and they may vote for it solely because in their judgment it has a wider or narrower scope than he slates.

This is one of the considerations that ages ago led to the adoption of the universal primary canon of

interpretation that in the absence of ambiguity apparent upon the face of a document extraneous references are not permissible, and the meaning is to be gathered exclusively from the text with the words taken in their (>rdhavy and usual meanings. A further urge is that the words “prostitution or debauchery or other immoral purpose” do not cover sexual intercourse that is merely unlawful. “Other immoral purpose” are words of such generality that a criminal conviction thereunder could not be tolerated for acts whose purpose was any and every sort of immorality.

They must be limited to that genus of which the preceding descriptions are species. Defendant contends that the nexus, the attribute in common, is “commercialized vice”; that a defendant cannot he guilty unless it be shown that he is fiancially concerned in “the traffic in women.” Prostitution, the first species, involves the financial element. But there is no condition in the statute that the furnisher of transportation shall be guiltless unless he shares in or somehow profits by the hire of the woman’s body. And in Hoke’s Case, 227 U. S. 308, 33 Sup. Ct. 281, 57 L. Ed. 523; 43 L. R. A. (N. S.) 906, Ann.

Cas. 1913E, 905, a conviction for transporting a woman “for the purpose of prostitution” was upheld without proof that the woman was a “white slave,” an

article of barter in “the traffic in women,” or that the defendant was interested in her earnings. Debauchery, the other named species, is restricted by its association with the first species to sexual debauchery, a leading of a chaste girl into unchastity. No financial element is necessarily involved in sexual debauchery; the statute introduces no such condition; and Athanasaw’s Case, 227 U. S. 326, 33 Sup. Ct. 285, 57 L. Ed. 528, Ann.

Cas. 1913E, 911, teaches that the providing of interstate transportation for the mere purpose of attempting to lead a chaste girl into unchastity is a felony without proof that the defendant intended to be the debaucher, or that he expected to profit by the girl’s hire if she should become a prostitute. So it becomes apparent that “commercialized vice” or “the traffic in women for gain” is not the common ground, that the nexus indicative of the genus is sexual immorality, and that fornication and adultery are species of that genus. This conclusion is fortified by United States v. Bitty, 208 U. S. 393, 28 Sup.

Ct. 396, 52 L. Ed. 543, where in construing the prohibition of the immigration act against the importation of alien women “for the purpose of prostitution or any other immoral purpose,” the latter phrase was held to mean unlawful sexual intercourse regardless of financial considerations. See, also, United States v. Flaspoller (D. C.) 205 Fed. 1006, in reference to the White Slave Traffic Act. Lawful power in Congress to pass

an act of this scope is challenged. There w.as a time when it would have been interesting to examine the contention that the word “commerce” in the commerce clause of the Constitution means only “traffic in or an exchange of commodities.” But when the ultimate tribunal long ago definitely decided that the term also includes “'navigation and intercourse,” that “transportation of persons” in and of itself is “commerce,” and that “commerce” may not only be “regulated,” but actually prohibited, in the interest of the general welfare, no room was left for profitable discussion. Passenger Cases, 7 How. 283, 12 L.

Ed. 702; Gloucester Ferry Case, 114 U. S. 196, 5 Sup. Ct. 826, 29 L. Ed. 158; Rahrer’s Case, 140 U. S. 545, 11 Sup. Ct. 865, 35 L. Ed. 572; Covington Bridge Case, 154 U. S. 204, 14 Sup. Ct. 1087, 38 L. Ed. 962; Addyston Pipe Case, 175 U. S. 226, 20 Sup. Ct. 96, 44 L. Ed. 136; Lottery Case, 188 U. S. 321, 23 Sup. Ct. 321, 47 L.

Ed. 492;' Hoke’s and Athanasaw’s Cases, supra.' Whole ranges of acts, like those regulating carriers, safety appliances, employers’ liability for injuries to interstate trainmen, hours of dispatchers’ work, 28-hour confinement of live stock, movements of diseased persons or animals, pure food, etc., are upheld only on the basis that “transportation is commerce.” Nothing remains but to say that the present act obviously is concerned with the interstate transportation of persons.

How far and with what governmental purposes the undoubted power shall be exercised must be determined by the legislative, not the judicial, department of government. Defendant questions the right of the government to try him in the Northern District of Illinois. But inasmuch as the trial is for an. abuse of interstate transportation, we are of the opinion that Congress had a_ clear right to provide, as it did, that the offense should be cognizable 'in any district from, through, or into which the transportation led. Minor objections to the course of the trial have been brought to our attention.

Suffice it to say that we have carefully examined the entire record and find nothing substantial of which defendant may justifiably complain except the submission of the prostitution counts. Inasmuch as the sentence is based on the two sets of counts jointly, the judgment is reversed for resentence on the sexual intercourse counts and for retrial of the prostitution counts if the government has additional evidence to -support them.