Opinion
No. 116.
November 10, 1930.
Appeal from the District Court of the United States for the Eastern District of New York.
Pasquale Coltabellotta was convicted on both counts of an indictment in two counts charging a violation of the White Slave Traffic Act §§ 2 and 4 (18 USCA §§ 398, 400), and he appeals.
Judgment affirmed as to the first count, and reversed as to the second count.
The defendant is the uncle by marriage of the girl concerned in the crimes with which he was charged. She was 17 years old at the time, and lived with her parents on Staten Island. He was about 48 years old and married. Until some time in June or July, 1929, he lived on West Thirty-Ninth street in New York City with his wife and four children. He then left his wife and began an action for divorce. He had known the complaining witness about eleven years. In 1928 she had lived in his home for about four months helping take care of the children, and he expected that she would testify when his divorce proceedings came on for trial to what she had then learned concerning his wife's infidelity.
On September 5, 1929, the girl left home. Her parents received a letter from her September 6th mailed in New York City, telling them that she was married to a man named Joe Vendetti, was safe, and would be back "in two weeks or a month." Joe Vendetti apparently was only a name. About ten days later her mother received another letter from her, mailed in Albany this time, and much to the same effect. In December, her parents learned that she was at the home of her grandmother in Chicago. Her father went there, brought her back, and proceedings were had, with the result that she pleaded guilty to a charge of vagrancy, and was sentenced to the House of the Good Shepherd. At first she insisted that she had been away with Joe Vendetti, but later implicated the defendant, and he was indicted.
At the trial, the government's evidence tended to show that on September 4, 1929, the defendant took the girl in his automobile to his cousin's home in Bogota, N.J., and back to New York the same day; that on September 5, he took her in his automobile from Staten Island to Fortieth street, Manhattan, where he put her on a bus, bought a ticket for her, gave it to the conductor, and told her to go to his cousin's in Bogota to talk over the testimony she would give in his divorce case; that she went to Bogota on the bus and found his cousin waiting for her at his home; that the first letter her mother received from her was written at Fortieth street at the defendant's instigation, while he stopped his car for her to do it, and that she gave it to him to mail; that she remained a month and a half at his cousin's home in Bogota; that the defendant went to this place about 1 o'clock in the morning of September 8th and occupied the same bed with her the rest of that night; that they then had sexual intercourse, and did so about twice a week afterwards while she remained in Bogota; that the defendant then took her to Little Ferry, N.J., where he rented a room for her; that she remained there one week, and during this time their intimate relations were continued; that they were the same for a month following at a room he rented for her in Passaic, N.J.; that she then persuaded him to give her the money to go to Chicago, and went to her grandmother's there. The government's evidence further tended to show that in June, 1929, the defendant had taken this girl to his room on Fortieth street in New York City, and there for the first time had sexual intercourse with her.
The defendant, testifying in his own behalf, denied that he had ever had sexual intercourse with the complaining witness or that he had anything to do with her going from New York to New Jersey. His testimony and that of other witnesses was to the effect that on September 5th he was on Long Island all day looking for work.
Murry Boxer, of New York City (J. Sidney Bernstein, of New York City, of counsel), for appellant.
Howard W. Ameli, U.S. Atty., of Brooklyn, N.Y. (Herbert H. Kellogg, Asst. U.S. Atty., of Brooklyn, N.Y., of counsel), for the United States.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
Reversal is sought on the ground that the evidence was insufficient to support either count in the indictment and that the attitude of the trial court was prejudicial to the defendant.
The familiar doctrine that an appellate court will not reverse a judgment entered on a verdict of guilty, where the evidence, however contradicted, might still reasonably lead honest and impartial jurors to the conclusion that the defendant is, beyond a reasonable doubt, guilty, and there is no error elsewhere, needs no elaboration here. All necessary to convict the defendant on the first count was proved by testimony directly to the facts except his intent in sending the girl from New York to New Jersey September 5th. This intent to cause her to be transported for immoral purposes across the state line must have been proved beyond a reasonable doubt to have been in his mind when he had her transported; for such a present intent is an indispensable ingredient of the crime charged. Alpert v. United States (C.C.A.) 12 F.2d 352; Drossos v. United States (C.C.A.) 16 F.2d 833. And, of course, the burden was on the government to show it. Kelly v. United States (C.C.A.) 297 F. 212. Being nothing more tangible than a state of mind, the defendant's intent must of necessity remain his secret except only in so far as he disclosed it by speech or conduct. Although he denied any part in her going away and attempted to prove an alibi, the jury had the right to disbelieve him and his evidence and take the facts as disclosed by the government's evidence to be true. It had an equal right to make all reasonable deductions from the facts proved to determine his intent. What he is said to have said indicated no immoral purpose, but rather a desire to prepare for his action for divorce, but his acts, as so often is true, speak louder than words. He had had sexual intercourse with this girl in June; his power over her enabled him to take her without protest from Staten Island to Fortieth street and persuade her to write and give to him to mail a false letter calculated to explain her absence to her parents and forestall search or pursuit by them. It was sufficient to send her on a bus to his cousin's in Bogota, N.J., where they had been together the day before for some purpose. The suggestion that the trip was in preparation for the trial of his divorce action is supported by no evidence other than her testimony that that is what he told her, and he repudiated such a reason entirely by his evidence that he had nothing to do with her going. With the evidence standing thus, and the jury with cause believing that the defendant had testified falsely about the trip, we cannot as a matter of law say that it was not warranted in reaching the conclusion it did that beyond a reasonable doubt the defendant knowingly caused this girl to be transported from New York to New Jersey with the intent necessary to constitute the crime with which he was charged in the first count. See Alpin v. United States (C.C.A.) 41 F.2d 495. The exception presents only a question of fact into which we can go but deep enough to determine whether the jury had sufficient evidence before it on which to base its finding. Sloan v. United States (C.C.A.) 287 F. 91, 92. Having found such evidence, we are bound to uphold the verdict and judgment.
The statute on which the second count was based required the government to prove beyond a reasonable doubt that the bus used to transport the girl to New Jersey was a common carrier. This was a fact susceptible of definite and direct proof. Yet nothing about it was shown except that it was a bus that took passengers who had tickets; that some twenty passengers made the trip at the time in question; that it went from Fortieth street, Manhattan, to Bogota, N.J.; and that it had a conductor. We need not go into the distinction between a common and a private carrier for there are no facts in evidence which point to this bus being one rather than the other. All distinctive facts, supposedly so easy to have been obtained, are lacking, and there was no evidence rising above the status of mere probability that the bus was a common carrier.
The exception based on the claim that the attitude of the trial court was prejudicial to the defendant is not only unsupported by the record, but is entirely refuted by it. It merits no discussion whatever.
Judgment on the first count affirmed. Judgment on the second count reversed.