United States v. Fleenor ( 1947 )

SPARKS, Circuit Judge.

Appellant was charged, in two counts, by grand jury indictment, in the Southern United States District Court of Indiana, with having in the year 1946, unlawfully, knowingly, willfully, and feloniously transported, caused to be transported, and aided and assisted in obtaining transportation for and in transporting in interstate commerce into the State of Indiana from another State, certain women for the purpose of fornication, adultery, debauchery and prostitution, in violation of the White Slave Traffic Act, 18 U.S.C.A. § 398. The first count related to the transportation of Geraldine Fleenor and Gladys Egan, alias Gladys Kellogg, from Peoria, Illinois, to Evansville, Indiana, on or about July 19, 1946. The second count related to the transportation of Sue Kearns from Henderson, Kentucky, to Evansville, Indiana, on or about August 16, 1946.

To each count of this indictment appellant pleaded not guilty, and the case was tried by a jury. At the close of plaintiff’s evidence, appellant moved for a directed verdict of not guilty as to each count, which was overruled. This motion was renewed at the close of all the evidence, and was again overruléd. The jury returned a verdict of guilty as to both counts, and judgment was rendered accordingly, with a penalty of five years’ imprisonment, and a fine of $500 as to each count, and the sentences and judgments on the two coums were to run cumulatively and not concurrently. From this judgment this appeal is prosecuted.

Considerable stress is laid by appellant upon the conduct of the court in the trial of this case because at different times it plied certain questions to different witnesses. All but one of appellant’s counsel appearing here conducted the trial in the district court, and no complaint whatever was there made concerning the conduct of the court in any respect, nor was it assigned there as a ground for appeal. However, we have studied the entire record, and we find no justification for such an assignment.

Further contention is urged by appellant that although the court instructed the jury that they were the sole judges of the facts and the weight and credit to be given to the various witnesses, that instruction in no wise served to correct the intimation, as to the'Judge’s view and wishes made through his actions and comments during the trial. In this respect appellant says he does not question the sincerity and singleness of purpose of the Judge, "but this is one of those rare cases where it was necessary for the Judge to rise above moral principles in order to perform his duty as a Judge.” After many years of experience both as a trial and a reviewing court it has never before been suggested to us that it was ever necessary for any court, under any circumstances, to rise above moral principles in order to perform its duties.

Appellant contends that the court erred in its instruction on the question of reasonable doubt. This subject is covered by three consecutive paragraphs of the court’s instructions. The objection is addressed only to a portion of the first paragraph, ending with a comma, without mentioning one word of the remaining portion of that sentence, or any part of the second and third paragraphs. It is elemental that instructions on any particular subject should be construed as- a whole, and when that is done here we find no error whatever in this respect.

It is further contended by appellant that the court erred in instructing the jury with respect to the witnesses, 'as follows:

“Of course, you saw the witnesses on the witness stand, you have a right to look into their faces and determine the weight and credit to be given to the testimony of those witnesses, take into account the interest they may have in the outcome of this trial, the reasonableness of the testimony, and such other facts as will assist you in determining the weight and credit to be given to the testimony of the various witnesses who have testified in this case, and, finally, it is your responsibility to tell this court by your verdict whether or not this defendant is guilty as charged in the indictment.” There was no error in this instruction.

Appellant further urges that the court erred in instructing as follows: “Now, the defendant 'did not testify. He nad tiic right to testify or not as he saw fit, and the fact that he did not testify in this case must not be considered by you in determining his guilt or innocence because that was his right to testify or not as he saw fit.” The instruction is correct, and there was no error in this respect.

Appellant further contends that the court erred in instructing the jury on the purpose of the alleged transportation of these women to Evansville, Indiana, from Peoria, Illinois, and Henderson, Kentucky. On this subject the court instructed as follows :

“Now, you can’t take an X-ray of a man’s mind, and tell what his purpose is, or what his intent is in doing any certain thing. That is something that exists in the mind alone. In determining that question, of course, you will take into consideration the acts, the things that are done, all for the purpose of you determining what was in the person’s mind who did them. You, of course, will take into consideration the acts of these women as shown by the evidence in the case, just prior to the time they came into Indiana, the acts ofi these women as shown by the evidence, what they did immediately following their arrival in Evansville, and then from that determine whether or not if you find this defendant did aid or assist in transporting or furnishing transportation or transport them according to the statute, whether or not he did it for the purpose of having them or any one of them engage in prostitution as charged in the indictment.

“Now, gentlemen, I am not going to discuss the evidence in this case. It did not take long to try it, but I want to say to you that circumstantial evidence is legal evidence, but when the Government relies upon circumstantial evidence as it apparently does in this case to show this defendant is guilty of transporting, aiding or furnishing transportation for these women in interstate commerce, the circumstances must be so convincing that you can arrive at no other conclusion than that of guilt before you can convict him on circumstantial evidence alone.

“So, consider all the circumstances, the association of these people together, at other places than in Indiana — Peoria, Illinois; Henderson, Kentucky; then Evansville, Indiana, and then from those circumstances, together with all other evidence determine whether or not the defendant is guilty as charged.”

The basis of appellant’s objection to this instruction is the first paragraph thereof, and again he does not mention nor does he seem to consider the following paragraphs. He urges that the jury was caused by the first paragraph to believe that proof of the acts of the women before they came into Indiana and after they arrived in Evansville, standing alone, was sufficient in itself as a basis for a verdict of guilty, and further that the jury was made to believe that reasonable grounds of belief on the part of appellant that they might engage in prostitution thereafter would constitute guilt to the same extent as would intent and purpose on his part that they should do so. We think the instruction as a whole conveys no such impression. It is elemental, however, that every one is presumed to intend the natural consequences of his own acts, and we are convinced that the evidence, to which we shall later refer, proved beyond a reasonable doubt that the natural consequences of appellant’s acts in this respect, coupled with his intimacy and relations with, and knowledge of the parties here involved, both before and after these transportations, preclude any question that these women were coming to Evansville with his assistance for the purpose of engaging in their nefarious occupation. We are convinced that the instruction was proper and that it in no way conflicts with the decision in Mortensen v. United States, 322 U.S. 369, 370, 64 S.Ct. 1037, 88 L.Ed. 1331.

Appellant tendered and requested no instructions, nor did he, in the District Court, interpose any objections whatever to any of those given by that court, or assign as error the giving of, or the refusal to give, any instruction as a ground of appeal.

The evidence in this case discloses that Geraldine Eleonor and Gladys Egan had known each other since childhood in Louisville, Kentucky. Both admitted they were and are prostitutes and, prior to the return o £ this indictment, had engaged in that business in Louisville, Kentucky; Peoria, Illinois; Evansville, Indiana, and elsewhere. The former was married to appellant on January 3, 1945, at Newport, Kentucky, and they lived for a short time in Covington, Kentucky. Gladys Egan, alias Gladys Kellogg, was never married to James Kellogg, with whom she lived as husband and wife in Louisville, Kentucky, Peoria, Illinois, and Evansville, Indiana.

Within a month after the marriage of appellant, his wife left him at Covington, Kentucky, and returned to Louisville, which is the present residence of appellant and his mother, and where the latter two lived prior to his marriage. While in Louisville at that time she worked as a prostitute for three or four weeks in the summer of 1945, in a house of that kind conducted by Mr. Ollie Bessinger, who testified that appellant came there and saw her on several occasions. Appellant’s wife testified that she had practiced prostitution in houses of that character in Louisville, for Bessinger, and in New Albany, Indiana. However, she denied that she had engaged in that work in Peoria, although she admitted she had met Ethel Lamar who conducted a house of prostitution in Peoria, and on several occasions had gone there to visit her friends, Gladys Egan, alias Mrs. James Kellogg, and Sue Kearns, alias Mrs. Huntley, who were working there as prostitutes.

The evidence further- discloses that Gladys Egan worked at Bessinger’s house in Louisville from November, 1945, to April, , 1946. Appellant knew- her during this time, although the record does not show whether or not he ever saw- her at Bessinger’s house.

James Kellogg and Gladys Egan registered at the Julian Hotel in Peoria, Illinois, as husband and wife on June 20, and remained there until July 2, 1946, when they checked out. Appellant and his wife registered at the same hotel on June 22, and checked out on July 5, 1946.

After appellant’s wife left Bessinger’s house in Louisville, she and her husband returned to Covington. However, in the latter part of 1945, or in January, 1946, they returned to Louisville and lived with his mother. In the latter part of the following May she went, by herself, to Peoria, Illinois, where she lived at the Lee Hotel. Appellant joined her in Peoria and they registered at the Julian Hotel on June 22, as above stated. These four parties were friends and associates and rode about the city in appellant’s car.

Sue Kearns also worked at Ethel Lamar’s place in Peoria with Gladys Egan, and stayed at the Julian Hotel with Frank Huntley. The record is silent as to where appellant and his wife and James Kellogg and Gladys Egan were living between the time they checked out of the Julian Hotel, as above stated, and July 18, except that there is some evidence that they may have lived at the Lee Hotel and other hotels there. At least Sue Kearns and Gladys Egan were working as prostitutes at the Lamar house, and at 11:55 p. m. on July 17, 1946, Gladys Egan, alias Montgomery, was arrested at 317 Prairie Street, Peoria, on the charge of keeping a disorderly house, and at the same time and place appellant’s wife, alias Carmen Martin, was arrested at the same place for being an inmate of a disorderly house.

Sue Kearns testified she was a prostitute, then in custody as a material witness in this case, by virtue of being arrested, .on August 23, 1946, as an inmate of Mrs. Riddle’s house of prostitution in Evansville. She had come from Peoria where she worked for two or three months as a prostitute in the house of Ethel Lamar. She answered as follows to the following questions :

“Q. Well, now Sue, while you worked at Ethel Lamar’s house, in Peoria, Illinois, were there other girls working there? A. Yes, sir.

“Q. Would you tell us the names of some of those girls or identify some? A. Well, Glessie worked there.

“Q. Gladys Egan Kellogg? A. Yes, and I saw Fleenor there, Geraldine.

“Q. Geraldine Fleenor? A. Yes, sir.

“Q. And when you say you saw her there, just what do you mean by that? A. Well, when I went to work she would be there. I saw her there several times when I went to work.

“Q. Did you girls work on shifts there? A. Yes, sir.

“Q. Was she working at a different shift from what you were working?

“Defense Counsel: Let the witness testify.

"The Court: Go ahead:

“Q. Is that what you mean, when you would get there she would be there ? A. 1 saw her there several times and she was talking to Ethel and I guess that is what she was doing there.”

This witness also went under the name of Mrs. Frank Huntley, but she was never married to Huntley. They lived at the Julian Hotel as man and wife and knew and were friends of appellant and his wife and the other parties to whom we have referred as living there.

On July 18, 1946, the next day after the arrest of Gladys Egan and Mrs. Fleenor at Peoria, appellant and his wife checked in at the Julian Hotel early in the morning. Kellogg and Gladys Egan were also there. The cases against the two women were disposed of by the court at Peoria in the morning of July 18. Shortly after the noon meal appellant and his wife checked out, and left their key. . His automobile was in front of the hotel. His wife said she had received a telephone call from Frank Huntley, the consort of Sue Kearns, to come to Evansville. Mr. Julian, the owner or manager of that hotel, said he saw appellant and his wife, accompanied by Kellogg and Gladys Egan, early in the afternoon of July 18, 1946, go out of the hotel and walk over to appellant’s automobile. He could not say that he saw them get in the car, but he presumed they did, for when in only a short time he looked again, the car and the four parties were gone. They had no baggage with them when they left the Julian Hotel on July 18. The record does not disclose where these parties stayed that night. However, this car was parked in front of the Lincoln Hotel at Evansville, Indiana, shortly after 1 o’clock in the morning of July 20, 1946. The bell-hop at that hotel met these four parties, with their baggage, at the front door near the automobile, and conducted them and carried their baggage to the clerk’s desk where they registered as Mr. and Mrs. James Kellogg and Mr. and Mrs. R. H. Fleenor, and were assigned respectively to rooms 312 and 308. The bell-hop could not say whether, when he first went to the sidewalk, all of the parties were out of the car, but he said some were. He got some of their baggage from near the front door of the hotel, and other pieces from the car. Both he and the night clerk identified appellant, Mrs. Flee-nor, and Gladys Egan at the trial. James Kellogg was not called as a witness.

The evidence controverting that of Mr. Julian, the manager of the Julian Hotel at Peoria, and the night clerk and the bellhop at the Lincoln Hotel at Evansville, was given by Geraldine Fleenor and Gladys Egan. Mrs. Fleenor said her husband was unable to do manual labor by reason of a tubercular bone; she did not know for whom he worked but he booked horses and placed bets at race tracks. She identified a photograph of her husband’s car. This car was also identified by the bell-hop at the Lincoln Hotel as the one that he saw” on the early morning of July 20, 1946, just outside the front door of that hotel when he conducted appellant, his wife, James Kellogg and Gladys Egan, and carried their baggage to the desk where they registered. These are the same persons who Mr. Julian testified left his hotel in Peoria, Illinois, on the afternoon of July 18, 1946, and went to this same car in front of his hotel, and in a very short time the car and the four parties were gone.

Mrs. Fleenor also testified that appellant left Peoria a week before she did, although she said she could not tell the day she came to Evansville. However, she said she came by bus, had to lay over and change busses twice, and arrived at Evansville a little before midnight, and waited at the bus station for her husband to come after her. She first said he came to Evansville in his automobile and arrived there after she arrived. She then said that he arrived at Evansville an hour or two before she arrived on the same night, a little before 1 o’clock.

Gladys Egan testified that she met appellant through mutual friends several years before, and before she was connected or acquainted with Mrs. Fleenor. She made one trip only from Peoria to Evansville, and that was by bus. She came alone and was met by Kellogg at the bus station at Evansville and they walked to the Lincoln Hotel, carrying her luggage, and registered there that night. She did not remember the date. This occurred directly after she and Mrs. Fleenor were arrested in Peoria on July 17, 1946. She did not see Mr. and Mrs. Fleenor at the time she arrived in Evansville and she cottld not recall that she and Kellogg and Mr. and Mrs. Fleenor left the Julian Hotel at Peoria together on July 18, 1946. The first time she saw the Fleenors after their arrival in Evansville on July 20, 1946, was in the lobby of the Lincoln Hotel two days thereafter.

A remarkable fact about this trip is that the evidence discloses that the destination of each of these parties was Evansville; that they left the hotel at Peoria together at precisely the same time and went to appellant’s automobile, and that they arrived at the Lincoln Hotel in Evansville at precisely the same time. It is not impossible, but quite improbable, that these women went to Evansville from Peoria by different bus routes, and they may have landed at different stations. The evidence does not reveal this information, and neither woman speaks of having seen the other on the trip, but the truly remarkable thing is that they all appeared at the Lincoln Hotel in Evansville at precisely the same time standing near appellant’s automobile, which was in Peoria in front of the Julian Hotel in the afternoon when last seen by Mr. Julian when they left the Julian Hotel.

From all these circumstances the jury would well be warranted in not believing the testimony of these women that they went to Evansville from Peoria by bus, and in believing that the four parties made the trip together in appellant’s automobile..

From some time in April until August 23, 1946, Mildred Riddle was operating a house of prostitution, and they there sought ana. She testified that during the afternoon of July 19 or 20 of that year, Geraldine Fleenor, with Gladys Egan, came to her house of prostitution, and they there sought work as prostitutes. Mrs. Riddle did not have room for both. She therefore' employed Mrs. Fleenor as a prostitute, and walked with Gladys Egan a short distance down the street in the same district to the house of Marie Lawrence, where she left her. Mrs. Fleenor worked as a prostitute at Mrs. Riddle’s continuously until August 23, 1946, on a shift from 11:30 a. m. until about 6 p. m., and during- that time she lived at the Lincoln Hotel in Evansville. While she was thus employed at Mrs. Riddle’s house, and during her work hours, appellant came to the house - of Mrs. Riddle and borrowed an automobile tire from Mrs. Riddle’s husband. It was near evening mealtime and Mrs. Riddle invited him to eat supper with them, although she had never met him before. He 'accepted the invitation and there ate supper with his wife and Sue Kearns and Mr. and Mrs. Riddle. He then left, leaving' his wife there.

Sue Kearns, alias Mrs. Frank Huntley, although she never married Huntley, was a prostitute at Ethel Lamar’s house in Peoria, and left that city before appellant and his wife and James Kellogg and Gladys Egan left. She came to Evansville and worked as a prostitute in the house of Mildred Riddle. From there she went to Henderson, Kentucky, where she worked as a prostitute at the Kingdon Hotel about one week before the following transaction occurred.

Shortly before August 23, 1946, appellant and his wife, Frank Huntley, and a Mr. Hollowell, came to Henderson, Kentucky, in the afternoon, in appellant’s car which Huntley was driving. They picked up Sue Kearns at the Kingdon Hotel, where she was registered and living with a man friend as Mr. and Mrs. Phillips, and they all, except Mr. Phillips, returned together to Evansville in appellant’s car. Sue Kearns within two days was again working as a prostitute in the house of Mildred Riddle, and on August 23, 1946, Mrs. Riddle, Sue Kearns and appellant’s wife were arrested at the Riddle house in Evansville, Indiana.

In explanation of this trip, the testimony of appellant’s wife discloses that on the day it occurred, Mr. Hollowell, James Kellogg, the appellant and his wife were sitting in the Blue Bar of the Lincoln Hotel at Evansville, when Frank Huntley came in and asked appellant to take him some place. The latter replied that he was sick, and Huntley said, “I will drive myself.” Thereupon they all went in appellant’s car to Henderson, Kentucky, and brought Sue Kearns from the Kingdon Hotel at Henderson, to Evansville, Indiana. Frank Huntley did the driving. He stopped the car in front of the Kingdon Hotel and went alone to the room of Sue Kearns and brought her to the car.

Appellant relies strongly on Mortensen v. United States, 322 U.S. 369, 370, 64 S.Ct. 1037, 1041, 88 L.Ed. 1331. There Mortensen and wife operated a house of prostitution at Grand Island, Nebraska. They took two of their women prostitute employees on a pleasure trip with them, by automobile, to Salt Lake City, Utah, thence to Yellowstone National Park. It was purely a vacation trip, with the two girls paying their own living expenses, and petitioners bearing the expense of transportation. No acts of prostitution or other immorality occurred during the two week trip, and at the end of that time they all returned with defendants in their automobile to Grand Island, Nebraska, and the girls resumed their activities as prostitutes in defendants’ employ. Those defendants were charged in two counts with violating section 2 of the Mann Act in that they transported the two girls in interstate commerce from Salt Lake City, Utah, back to the defendants’ house in Grand Island, Nebraska. The District Court adjudged them guilty, and the Circuit Court of Appeals affirmed. The Supreme Court reversed, and as we interpret the opinion, based its ruling on the following: “The fact that the two girls actually resumed their immoral practices after their return to Grand Island does not, standing alone, operate to inject a retroactive illegal purpose into the return trip to Grand Island. Nor does it justify an arbitrary splitting of the round trip into two parts so as to permit an inference that the purpose of the drive to Salt Lake City was innocent while the purpose of the homeward journey to Grand Island was criminal. The return journey under the circumstances of this case cannot be considered apart from its integral relation with the innocent round trip as a whole. There is no evidence of any change in the purpose of the trip during its course. If innocent when it began it remained so until it ended. Guilt or innocence does not turn merely on the direction of travel during part of a trip not undertaken for immoral ends. If the return journey was illegal, so was the outgoing one since all intended, from the beginning, to end the journey where it began, at Grand Island.”

In the instant case no vacation trip is involved. Appellant’s wife, within a few months after their marriage, was engaged in prostitution at Louisville, Kentucky, and New Albany, Indiana. He visited her on several occasions at Bessinger’s house of ill fame although she lived outside Bes-singer’s house. She told him she had been engaged as a prostitute at Bessinger’s. From there she went to Peoria, Illinois, alone, and defendant followed her there within a week, without any visible means of support. They lived at the Julian Hotel where other prostitutes then lived who were then working at Ethel Lamar’s house. She denied having engaged in prostitution in Peoria, yet she admitted visiting frequently the other prostitutes at that house while they were on duty, and associating with them when off duty, and she and one of the others were arrested on July 17, and almost immediately upon their release they left Peoria.

The evidence in this case, supported by the testimony of Sue Kearns, is quite substantial to warrant the jury in believing that appellant’s wife was practicing prostitution in Peoria, Illinois, and that he brought her to Evansville, Indiana, for the purpose of there having her engage in her same nefarious work. She was a confirmed prostitute and he knew it. She was continually associating with prostitutes and he knew it, and it was a natural consequence of his taking her to Evansville, that she would again seek work in a house of prostitution, which she did in less than forty-eight hours after their arrival. lie was bound to know the natural consequences of his acts. We think the first count is supported by substantial evidence.

Little further need be said about the second count. Sue Kearns knew the appellant and his wife and James Kellogg and Gladys Egan at Peoria, when these three women were working as prostitutes in the house of Ethel Lamar, and all of them eventually came to Evansville and worked as prostitutes in the houseof Mildred Riddle. Sue Kearns also knew Frank Huntley at Peoria, for he first brought her to Peoria from Chicago. While working at the Riddle house, Sue Kearns decided to go to Henderson, Kentucky, to work as a prostitute at the Kingdon Hotel for a week. Huntley knew she was there, for he was the one who asked appellant to drive him down to Plenderson, Kentucky, to get her and bring her back. Appellant not only loaned Huntley his automobile for that purpose, but accompanied him, and they brought her back to Evansville, Indiana, and within two days she was again working as a prostitute, with appellant’s wife, at the house of Mildred Riddle, where appellant borrowed the automobile tire above referred to, and where on the same evening she, with appellant and his wife, had been entertained at dinner.

From the facts disclosed and admitted, Sue Kearns was a confirmed prostitute, and all of these parties knew it. The natural consequense of her return to Evansville was that she would again seek employment in a house of prostitution. This she did, and appellant was bound to know the natural consequences of his acts when he aided in bringing her from Henderson, Kentucky, to Evansville. The evidence supporting the second account is quite substantial.

Judgment affirmed.