DROSSOS v. UNITED STATES, 2 F.2d 538

MILLER, District Judge. Tbe plaintiff in error was indicted on three counts in tbe United States District Court for tbe District of Utab for violation of tbe White Slave Traffic Act (Comp. St. §§ 8812-8819). Tbe first count charged tbe defendant with having transported one Panagoula Georgopoulos, a female not tbe wife of plaintiff in error, in interstate commerce over tbe Bamberger Electric and Oregon Short Line Railroad from Salt Labe City, Utab, to Anaconda, Mont., for tbe purposes of prostitution, concubinage, debauchery, and other immoral purposes.

Tbe second count charged plaintiff in error on tbe same day with inducing, enticing, and persuadíng the said female to leave Salt Lake City, in tbe state of Utab, and to go and be carried in interstate commerce over tbe lines of tbe said railroads, common carriers engaged in interstate commerce, to tbe city of Anaconda, in tbe state of Montana, for tbe unlawful. purposes of prostitution, debauchery, and other immoral purposes.

The third count charged the plaintiff in error on the same date with procuring, obtaining, and assisting and aiding in procuring and obtaining a certain railroad ticket over the lines of the Bamberger Electric from Salt Lake City, Utah, to Ogden City, Utah, and thence from Ogden City, Utah, to the city of Anaconda, Mont., which tickets were then and there to be and were then and there used by the said female in going in interstate commerce from Salt Lake City, Utah, to Anaconda, Mont., for the purposes of prostitution, debauchery, and other immoral purposes.

Tbe case was tried to a jury and a verdict of guilty on each count was returned by them, upon which a sentence was imposed under each count of two years in tbe federal penitentiary at Leavenworth, to run concurrently.

With reference to certain testimony introduced by tbe government relative to tbe relations of tbe plaintiff in error and tbe female, Panagoula Georgopoulos, in Salt Lake City prior to their journey to Anaconda, and relative to their relations while at Anaconda, tbe court instructed tbe jury as follows: “If you are convinced that this relation— that tbe relationship of these parties in Anaconda was innocent, that tbe defendant bad no intention of engaging in immoral relations with this woman when be left here after her arrival in Montana, and if you are convinced by tbe evidence introduced in behalf of tbe defendant, then you should acquit him upon all tbe counts of tbe indictment.

But if you are convinced that this man joined in this trip with this woman for tbe purpose of cphabiting with her unlawfully and illegally, and that be transported her, purchased tbe ticket, or assisted in purchasing tbe ticket, and that be persuaded or induced her to go, then be would be guilty under tbe indictment.” To this instruction plaintiff in error timely excepted, and the giving of such instruction is now assigned as error. Standing alone, it must be conceded that this instruction is palpably erroneous and prejudicial, in that it shifts the burden of proof and in effect tells the jury:

(1) That to acquit they must bo convinced that the relationship of the parties in Anaconda was innocent; (2) they must be convinced that the defendant had no intention of engaging in immoral relations with this woman when he left Salt Lake City after her arrival in Montana; and (3) that they must be so convinced by the evidence introduced in behalf of the defendant. The only question is whether it was cured in subsequent instructions.

Subsequently, and bearing on the question presented, the court charged the jury as follows: “All presumptions of law independent of evidence are in favor of innocence, and a man is presumed to be innocent until he is proved guilty beyond a reasonable doubt, and in case of a reasonable doubt as to whether his guilt is satisfactorily shown he is entitled to an acquittal,” and then followed a not unusual definition of “reasonable doubt.” The government contends that the charge as a whole correctly states the law but fails to cite authorities in support of such contention.

That the burden of proof to establish the commission of a crime and every essential element thereof rests upon the prosecution is elementary and needs no citation of authorities. It is, of course, also true, and well settled by the authorities, that a charge to a jury is to be considered as a whole, and that if the instructions as a series correctly state the law, then though one paragraph or one phrase standing alone may be defective, it will not constitute reversible error.

But that is not the rule where two instructions are directly in conflict and one of them clearly erroneous and prejudicial, such as is presented here, for the jury will assume that the instructions are all correct and will as likely follow the incorrect as the correct instruction. See Branson’s Instructions to Juries, § 93; 16 Corpus Juris, pp. 1054 and 1055, and cases therein cited; 14 R. C. L. 777, § 45. Other specifications of error are assigned but may not arise again and, therefore, need not be noticed.

Because of the errors in the instructions pointed out and affecting the substantial right of plaintiff in error, the case is reversed and remanded, with instructions to grant a new trial. Reversed.