Appellant challenges a conviction under an indictment which charged that he did on October 2,1930, at Preston, Idaho, unlawfully and knowingly “transport * * * a certain woman, to wit, ono Ailcen Leatham Swift, in interstate commerce from the city of Preston, in the state and district of Idaho, to Lewiston, Cache County, in the state and northern division of the district of Utah, * * * for the purpose of concubinage, debauchery and other immoral purposes.”
The appellant on being arraigned did not demur to the indictment but entered a plea of not guilty. At the trial, before any evidence was introduced, he objected to the taking of evidence because the indictment' did not state a public offense. At the conclusion of the trial he moved for a directed verdict in his favor on the samo ground and because there was no evidence of criminal intent in the transportation of the woman. The motion was overruled, and an exception was saved to the ruling.
The court charged the jury as follows:
“In this caso it is chai’ged that the defendant transported this girl, Aileen Swift, from Preston, in the state of Idaho, to Lewiston, in the state of Utah, for the purpose of having sexual intercourse with her. * * *
“If you are satisfied beyond a reasonable doubt that such a purpose and intent was formed in the state of Idaho and the transportation of the girl from Idaho to Utah was for that purpose, then he would be guilty under the indictment in this ease. If you have a reasonable doubt about that it would be your duty to find him not guilty.”
*1060There were other matters in the charge, but none which submitted the ease on any other theory. The appellant tendered certain written instructions, and excepted to their refusal. But when such exceptions were not permitted, he formally excepted to “the failure of the court to instruct as to the definition of the words 'concubinage’ and 'debauchery’ and to give the request that the jury should disregard the portion of the indictment which refers to other immoral purposes, that the language is too indefinite and therefore cannot constitute a sufficient basis for any valid indictment.”
• The jury found appellant guilty. Thereafter, and before sentence, he moved for a new trial on the grounds that the evidence, was insufficient to sustain the verdict, the court erred in refusing to direct a verdict in appellant’s favor for that reason, and there were errors in the charge to the jury. He also moved to arrest the judgment, because the indictment was insufficient and the conviction was of an offense for which he was not indicted. The motion was overruled and the appellant excepted. He was sentenced to a term of four years.
It is assigned there was error in the proceedings, as follows: The overruling of the objection to the introduction of evidence; the refusal to direct an acquittal; the evidence was insufficient to warrant a conviction; the refusal to give requested instructions to the jury; the overruling of the motion in arrest • of judgment; the defendant was tried for and convicted of an offense not charged.
An' attack upon an indictment by objecting to the introduction of evidence is not recognized in the federal courts. Wild v. United States (C. C. A.) 291 F. 334. An indictment may be properly tested by a motion in arrest of judgment, for defects apparent on the face of the record. I Bishop, Crim. Proe. (4th Ed.) § 1285. The motion raises the objection that some substantial element of the - crime is omitted, but none with respect to the form of stating it. Dunbar v. United States, 156 U. S. 185, 15 S. Ct. 325, 39 L. Ed. 396.
The indictment in this case charged an offense, because it alleged concubinage as a purpose of the transportation. The indictment is based on that portion of the Act of June 25, 1916, which punishes a transportation “for the purpose of prostitution or debauchery, or for any other immoral purpose.” 36 Stat. 825 (18 USCA §§ 397-404). Concubinage is a sufficiently defined purpose, as it has a single clear meaning and is a kind of sexual immorality contemplated by the statute. Athanasaw v. United States, 227 U. S. 326, 33 S. Ct. 285, 57 L. Ed. 528, Ann. Cas. 1913E, 911. It signifies cohabitation of a man and woman not legally married.
But the averments of “debauchery and other immoral purposes” are insufficient, as they do not measure up to the standard set in Evans v. United States, 153 U. S. 584, 14 S. Ct. 934, 936, 38 L. Ed. 830, that a crime must be charged with precision and certainty, and the words of a statute do not suffice unless they “fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense.” Words of general description in a statute may be properly used, but should be accompanied by a specific statement of facts within them. United States v. Hess, 124 U. S. 483, 8 S. Ct. 571, 31 L. Ed. 516; United States v. Pond, 27 Fed. Cas. 596, No. 16067. Debauchery has different meanings, some of them being foreign to the statute; for example, gluttony and intemperance. See Webster’s and Century Dictionaries; Suslak v. United States (C. C. A.) 213 F. 913. As was held in the Athanasaw Case, the White Slave Act refers to that phase of debauchery consisting of “sexual actions.” Consequently, an indictment for violation of that aet should specify the character of debauchery. Likewise, it should particularize the general words “other immoral purposes.”
The question of the needful description of an offense in an indictment was involved in Lynch v. United States (C. C. A.) 16 F.(2d) 947, where it was decided that an indictment was insufficient in not specifying where in a given county the defendant possessed liquors. A more definite averment was held requisite to enable defendant to prepare his defense and to plead a conviction in a later prosecution. The rule was relaxed in Myers v. United States (C. C. A.) 15 F.(2d) 977, but the practice of loose pleading was disapproved. This court has followed the former case. Skelley v. United States (C. C. A.) 37 F.(2d) 503. However, by the test of either, the indictment in this ease must be held insufficient in its averment of “debauchery and other immoral purposes.”
I hesitate somewhat in expressing this view because of the opinions in Athanasaw v. United States, supra, and Ammerman v. United States (C. C. A.) 262 F. 124. In the former, the charge was more elaborate, but the sufficiency of the indictment was not discussed or reviewed. In the Ammerman Case, a charge of transportation for the purpose of *1061debauchery was found sufficient, but there was no discussion of, the point and no authorities were cited. An enlightening case is Blain v. United States (C. C. A.) 22 F.(2d) 393, where the indictment was held to be sufficient, because it specified that debauchery consisted of unlawful sexual intercourse, which was within the meaning of that word. Certainly, the eharge in this case should have set forth the kind of debauchery meant to he proved.
But as already noted, the indictment is sufficient in this case solely because it charges a purpose of the transportation was eoneubinage. If that element had been omitted, the indictment could not have been sustained. There was absolutely no offer to prove it and no claim the appellant ever contemplated such relation with the woman. It was wholly excluded by the evidence, which was limited to one or two acts of sexual intercourse, and accordingly the eharge of the court submitted only that purpose to the jury. The insertion of the word “concubinage” was without any possible excuse or warrant. Stripped of this, as it should be, the indictment is wanting in an essential specification of the offense. Otherwise, the motion in arrest of judgment reached the defect in the indictment, as it was one of substance and not of form.
For this reason, the government was not justified in subjecting appellant to trial upon proofs of a concrete offense under this indictment. He was entitled to he put In the position in which ho would have been had the word “concubinage” not been' inserted. In that case, the indictment would not have withstood the motion to arrest the judgment.
I agree that the judgment must be reversed and a new trial directed for the reasons stated in the opinion of Judge MeDERMOTT; and it is so ordered. But I think it is unnecessary to rest our decision on those grounds. In my opinion, a new and more definite indictment is indispensable, and, if such indictment shall not he returned in duo course, the defendant ought to be discharged without day.
Reversed.