Hewitt v. State ( 1914 )

Appellant has filed a motion for rehearing in which he raises but one question, and that one was not presented to the court below, nor to this court on the original hearing. He now insists that that portion of the pandering statute which provides that "any person who shall procure or attempt to procure or be concerned in procuring, with or without her consent, a female to leave this State for the purpose of prostitution, shall be deemed guilty of a felony," is in violation of and contrary to that clause of the Federal Constitution which provides: "The Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." He cites us to the cases of Montana v. State, 138 P. 495; Morgan Steamship Co. v. Louisiana, etc., 118 U.S. 455; Pierce v. New Hampshire, 5 How., 597, and Cyc., vol. 7, pp. 421-422. The last three citations have no further reference to legislation of this character than to hold that Congress has exclusive control over the regulation of interstate commerce, while the first case cited is a decision of the Supreme Court of Montana on a statute relating to the same question as does the statute involved in this case. The Montana statute prohibited the transportation of women from another State into that State for immoral purposes, and to punish those who aid women in obtaining such transportation. Our statute does not do this, but is aimed alone at acts done wholly within this State. The Supreme Court, in discussing the validity of the Mann White Slave Act, and sustaining its constitutionality in the case of Hoke v. United States, 227 U.S. 308, rests its decision on the ground that as the transportation of persons between the States is interstate commerce, Congress may regulate such transportation. The purpose of such transportation is but an incident thereto. And in that case Justice Kenna, who rendered the opinion, says: "We may illustrate again by the Pure Food and Drug Act. Let an article be adulterated, let it be misrepresented by false branding, and Congress may exercise its prohibitive power. It may be that Congress could not prohibit the manufacture of the article in a State. It may be that Congress could not prohibit in all its conditions its sale within a State. But Congress may prohibit its transportation between the States, and by that means defeat the motive and evils of its manufacture." Thus clearly recognizing the right of the State to control in regard to all acts done wholly within the State. Our statute does not seek to make criminal the transportation of a person from one State to another, nor in any manner seek to control transportation, but it only seeks to prohibit certain acts being done wholly within this State. A person might attempt to procure a woman to leave this State for the purposes denounced, and she refuse. Certainly, Congress could not punish that act, while the State law may and does. If in addition to the acts done by appellant in Knox County, he, in addition thereto, provided her transportation, or aided her in any way to go from this State to Louisiana, he violated the Mann Act as well as as our statute, and might be prosecuted therefor as a separate and distinct crime, but appellant in his testimony seems to be guarding against this by testifying he furnished no transportation, and did not aid her to secure it. This statute is of the same nature and character as article 1431, which punishes one for bringing stolen property into this State, the constitutionality of which Act has never been questioned so far as we have been able to ascertain. In that instance we do not punish him for the original theft, but the bringing of stolen articles into this State is defined to be an offense. The Federal statute prohibits the transportation of lottery tickets, but this does not render invalid the law of this State prohibiting the sale of lottery tickets within its borders. So in this case we are not seeking to punish a man for an act done in a foreign State, nor for the transportation of any person from this State to another State, but have defined as an offense acts done wholly within this State.

The motion for rehearing is overruled.

Overruled.