(dissenting in part).
Section 398, title 18 USCA, in part provides:
“Any person who shall knowingly transport * * * in interstate * * * commerce * * * any woman or girl for the purpose of * * * debauchery * * * shall be deemed guilty of a felony.”
King was convicted of a violation thereof.
The offense consists of two elements: (a) The transportation in interstate commerce, and (b) “for the purpose of debauchery.”
The sufficiency of the indictment was not challenged before verdict. It charged the offense in substantially the language of the statute. It is time that the word “debauchery” has more than one meaning. As used in the statute it means sexual immorality, or acts which will naturally and inevitably lead thereto. Van Pelt v. United States (C. C. A. 4) 240 F. 346, 348; Athanasaw v. United States, 227 U. S. 326, 331, 33 S. Ct. 285, 57 L. Ed. 528, Ann. Cas. 1913E, 911; Burgess v. United States, 54 App. D. C. 71, 294 F. 1002.
An indictment which charges the offense in the language of the statute is sufficient in substance and is not open to attack after verdict on the ground that it is not sufficiently specific. Montoya v. United States (C. C. A. 8) 262 F. 759.
While a defendant who waits until afteT verdict to question the sufficiency of an indictment does not waive the objection that some essential element of the crime is omitted, he does waive all objections which run *1063to the mere form in which the various elements of the offense are stated. Dunbar v. United States, 156 U. S. 185, 191, 192, 15 S. Ct. 325, 39 L. Ed. 390; Musey v. United States (C. C. A. 5) 37 F.(2d) 673. See also Wilson v. United States (C. C. A. 2) 275 F. 307, 311; Nudelman v. United States (C. C. A. 9) 264 F. 942; Wild v. United States (C. C. A. 8) 291 F. 334, 335, 336; Clement v. United States (C. C. A. 8) 149 F. 305, 313.
The indictment alleged both elements of the offense, but failed to allege one element, to wit, the purpose of the transportation, with sufficient particularity. The objection therefore is not that an element was omitted, but it runs to the form in which the element was stated. It is my opinion that such defect was cured by the verdict.
There is no doubt that King correctly understood the meaning of the word “debauchery” as used in the indictment, because he requested the court to charge the jury as follows:
“Debauchery, within the meaning of the statute above referred to, is correctly defined as sexual immorality. If a person should transport a woman from one state to another for the purpose of having the woman indulge in illicit sexual intercourse, then the person so transx>orting such a woman with such a purpose ean bo said to have transported her for purposes of debauchery. This is the meaning of the word ‘debauchery’ as it is used in the federal statute.”
For the above reasons I respectfully dissent from Judge COTTERAL’S opinion and concur in that portion of Judge MeDERMOTT’S opinion which deals with the sufficiency of the indictment after verdict.
Aileen Swift testified to the following facts. She resided with her parents at Preston, Idaho. She was 18 years of age. She first met King when he came to her home on Thursday, October 2, 1930, about six olcloek in the evening. Her mother and her nine year old brother were present. King showed them a machine called an “electrode,” told them it wonld cure her mother’s illness, cited cases he had cured, and offered to sell it for $26. Miss Swift said she wanted her mother to have the machine but could not buy it without seeing her father, that she would go to her father’s office and if he was there they would buy the machine. King offered to take her in his ear. She and her brother went with King to her father’s office but her father had not returned “from Logan. They started back to her home and King said “for two pins” he would drive down to Logan and see if they could find her father. She said she did not know whether they could find her father, but she would like to take a chance. King said it would he a good ride for her and her brother. They then went to her home, and she told her mother she and her brother were going with King to-Logan to try and find her father. The mother protested, but Miss Swift was so intent on getting the machine for her mother that she said she would go anyway.
They left Preston in King’s automobile about seven thirty o’clock in the evening. It was then dark. King and she occupied the front seat and her brother the back seat.
As they drove along they talked about her mother’s illness. King, with her consent, demonstrated the use of the “electrode.” He pretended to discover that Miss Swift was suffering from leueorrhea and told her if it was not cured she'would not he able to bear children. King said, “I wish we could get rid of your little brother so that I could show you.” He left her little brother at a drug store in Lewiston, Utah, took Miss Swift out on a lonely road and under the guise of a,n examination for the purpose .of determining a proper treatment for the disease took advantage of and seduced her.
They then returned to the drug store, got her brother and started toward Logan. They had not proceeded very far when they met her father’s car. They then turned around and followed her father’s car back to her homo at Preston.
It is four miles from Preston to the Idaho- , Utah state line. King commenced Ms intimacy with Miss Swift before they reached sueh state line.
Miss Swift was then asked, “During the time about which you have testified, did you know that Mr. King was not a medical doctor?” This was objected to on the ground that it was “incompetent, irrelevant and immaterial.” The objection, was overruled, and Miss Swift answered in the negative.
On Saturday night, 0‘etober 11, Miss Swift went with her sweetheart, Bill Barker, to a dance at Logan. She became ill and he took her home. She was suffering from a burning sensation in her privates. Dr. Eugene Worley was called, and he made an examination. Dr. Worley testified that he examined Miss Swift on October 11, 1930, and found her suffering with acute gonorrhea of short standing. He further testified that he had examined many patients for gonococcus germs, that it might take several examinations to detect evidence of gonorrhea, *1064and that the fact that no gonococcus germs are found is not conclusive evidence that gonorrhea does not exist.
King did not testify in his own behalf. The defense consisted of stipulations as to facts that certain witnesses would testify to if present, as follows:
That Dr. George Myler, a government physician at Cheyenne, Wyoming, “examined the defendant (King) on the 28th day of October and found that he had not had gonorrhea in the past six months.”
That Dr. Edward Lauzier, a physician of Rock Springs, Wyoming, made an examination of King’s wife and found she was not afflicted with gonorrhea.
That L. Martin, sheriff of Sweetwater County, Wyoming, and J. Kahn, a merchant, both residents of Rock- Springs, Wyoming, King’s home, knew King’s reputation in that community and that it was good.
The fact that a medical examination of King did not disclose gonorrhea infection does not impress me as being decisive. We do not know the extent or character of sueh examination. Unless a smear of secretion from the prostate gland was taken and subjected to a miscroseopie examination, a chronic gonorrhea infection might not be discovered on one examination. In an inactive chronic ease of long standing, it is often impossible to detect the germ, although it is present. Likewise the fact that the examination of King’s wife did not disclose that she had gonorrhea is not conclusive that King did not infect Miss Swift. Here again, we do not know the extent or character of the examination. The disease is often difficult to detect in a female. Furthermore, gonorrhea infection is not always common to both husband and wife.
It is argued that Miss Swift accused King in order to protect Barber. This is not based on any evidence, is wholly conjectural and is improbable. If Barker infected Miss Swift with this dreadful social disease, her natural feeling toward him would be one of hatred and resentment, rather than friendliness and a desire to protect him. Likewise, it would be unnatural for her to accuse an innocent old man with a serious offense, for the conviction of which he would suffer severe punishment.
Complaint is made that Miss Swift testified equivocally, “I guess he had intercourse with me.” For a young woman to testify at a trial before a jury of men and a curious court room audience as to the details of her seduction and to a fact that she had been infected with a loathsome social disease was no idle ceremony. Her diffidence and uncertain answer had more earmarks of truth than would a brazenly related and unequivocal statement of the details.
It is contended that King would not have invited Miss Swift’s little brother to accompany them, if he had had improper designs toward her. The brother was only nine years of ag’e, the journey was after dark, and King arranged to leave the brother at a drug store for a sufficient length of time to permit him to accomplish his evil purpose. I see little force in this argument.
If Miss Swift’s testimony was true, it established every element of the offense charged and fully warranted the verdict of guilty.
Unfortunately we have not been able to devise a means for determining issues of fact with absolute certainty. The common law petit jury, which Blackstone characterized as the “glory of the English law,” is the best instrumentality yet instituted for the determination of controverted issues of fact. The verdict of a jury is the unanimous opinion of twelve men coming from different walks of life, and with varied experiences. Their composite judgment on an issue of fact is usually right. My experience at the bar and on the nisi prius bench has confirmed my belief in the efficacy of the jury system. The jurors in this case heard Miss Swift testify, they observed her demeanor on the stand, and they believed her story. It is not for us to say that it was not true.
In its charge to the jury, the court in part said:
“There are three elements going to make up this offense charged in the indictment.
“First that the defendant King transported this woman, Aileen Swift; that he transported her from Preston, Idaho, to Lewiston, Utah* that he did it for the purpose, that is with the intent to have sexual intercourse with her. There is not any doubt in this ease, so far as the evidence is concerned, that on this occasion, that is on the 2ind day of October of this year, the girl rode with defendant King from Preston, Idaho, to Lewiston in his automobile.
“There is not any dispute about what Preston is in the State of Idaho and Lewiston is in the State of Utah.”
There were no exceptions to the charge.
It is contended that theseourt erroneously took from the jury the issue of transportation, and that the ease falls within the prin*1065eiples announced in Bogileno v. United States (C. C. A. 10) 38 F.(2d) 584, 587.
The indictment in the Bogileno Case charged a violation oí section 91, title 18, US CA, which makes it unlawful for a person to “give * * * any money * * * to any officer of the United States, * * * with intent * * * to induce him to do or omit to do any act in violation of Ms lawful duty.” Bogileno had been arrested by two prohibition officers. He gave them $400 in currency. The indictment charged that he gave this money for the purpose of causing them to release Mm and to refrain from appearing against Mm on a charge of violating the National Prohibition law then pending before a United States Commissioner. Bogileno testified that the prohibition agents asked Mm for money and that he gave them money so he could have them arrested. In its charge to the jury, the court said:
“The question is that this defendant, having been arrested and in the custody of the government — whether he offered this bribe to induce them to drop the charges or not to appear as witnesses against him. The evidence on that point is that he gave the officers, after a discussion with them, $400. He admits he gave them money. He admits he gave it for that purpose, so there can hardly he a dispute about that fact. * * *
“In this case as I see it there is very little dispute in the evidence. He admits he gave the money, and gave the money for the purpose of bribery.”
Bogileno did not admit he gave the money for “that purpose.” He denied such was Ms purpose. In the opinion in the Bogileno Case, this court said:
“The instructions were brief, covering less than two pages, and we cannot believe that these two excerpts failed to impress the jury. In substance, they seem to ns to he equivalent to an instruction to find the defendant guilty, which is beyond the right and authority of the court to do. It was the exclusive duty of the jury to determine whether ho gave the $400 to induce the agents to drop the charges or not to appear as witnesses against him. He did not admit that he gave it for that purpose, or for the purpose of bribery. He testified that he gave it for another purpose.”
In the Bogileno Case the instructions misquoted the evidence of, the defendant, took from the jury the only issue in the case, and in effect instructed the jury to find the defendant guilty. On the other hand, in the instant ease, the instructions conformed to the undisputed evidence and referred to an element of the offense against which no defense was interposed. If King and Miss Swift did not make the journey to which she testified, her story was wholly fabricated. If they did not make such journey, surely the defense would have attempted to controvert that portion of her testimony. I think, under the circumstances, the 'statement of the court was a legitimate and justifiable comment on the evidence, and well within the province of the trial judge.
It is also contended that the court erred in overruling the objection to the question asked Miss Swift whether she knew King was not a medical doctor. The objection was that the evidence was incompetent, irrelevant and immaterial. If Miss Swift’s story is true, King held himself out to her as being able to diagnose and treat disease. He thereby gained her confidence and placed her in an attitude where he could seduce her. If he was not a doctor, and she knew it, her story was less probable. The evidence was material. The only objection that could have been properly urged was that the question assumed facts not proven. Since this objection was not interposed, I do not tMnk the error should be noticed here.
For the foregoing reasons I respectfully dissent from the concurring- opinion of Judge McDERMOTT, except as to that portion which deals with the sufficiency of the indictment after verdict.