On Rehearing.
Before BAKER, SEAMAN, and MACK, Circuit Judges.
BAKER,- Circuit Judge.In its petition for rehearing the government calls attention to an overlooked item of evidence to support the submission of the prostitution counts. Not only was the state of the evidence - as given in the opinion unquestioned in the government’s briefs and at the oral argument, but the position was taken that the prostitution counts were sufficiently sustained by proof that the prosecuting witness was a confirmed prostitute, and that defendant had sexual intercourse with her. We held and now hold that this position is unsound. The unlawful intercourse feature of the statute can be established only by evidence that transportation was'furnished for the purpose of enabling the defendant to have sexual intercourse with the woman or girl, and whether she was previously moral or immoral is immaterial. The prostitution feature of the statute.can be established only by evidence that the transportation was furnished for the purpose of the defendant’s aiding or abetting the woman or girl in submitting *685her body promiscuously for hire, and whether the defendant himself had sexual intercourse with her or not is immaterial.
In the testimony of the prosecuting witness appears an account of a trip from Pittsburgh to Atlantic City, to Chicago, to Cleveland, to Detroit, to Buffalo, to Toronto, to Montreal, and back to Pittsburgh. P'or each move the transportation was furnished by defendant, and at each place the unlawful relations were maintained. This testimony was taken by us as supportive only of the unlawful sexual intercourse counts, and our attention was not attracted to a conversation at Atlantic City, which occurred about 2% months prior to the transportation counted on in the indictment, and which may be given an interpretation bearing on the prostitution counts. She testified that defendant there said to her that if she was sporting she might as well make the money for herself as for others, and that she should look for an apartment at Chicago; that at Chicago she looked for an apartment, but failed to find one; that defendant paid her way to Chicago, and there maintained the same relations with her as at the other cities. Whether her statement of defendant’s remark should be accepted over defendant’s denial, whether the remark should be considered as merely casual advice for her independent action, or as evidencing an intent to aid or abet her in prostitution, whether the furnishing of transportation from Atlantic City to Chicago was for purposes of unlawful sexual intercourse, or for prostitution, or for both, we recognize as questions for the jury. But the contrast between the states of the evidence in support of the two sets of counts is very marked. Against conviction on the sexual intercourse counts defendant’s main reliance was on points of law, which we denied. The evidence was overwhelming. And we continue to believe that we were right in upholding the conviction on those counts against complaints of acts by the government’s attorney and erroneous admission of evidence, because the record demonstrates that, no matter how improperly the prejudices of jurors may have been aroused, no other verdict could properly have been reached. But the evidence tending to support the prostitution counts is so slight and dubious that, when we see that these counts were Carried along by the clearly established sexual intercourse counts, we are of opinion that the matters above referred to become material.
[6] In his opening statement the government’s attorney said:
“Another immoral purpose is one too obscene to mention, the purpose being for defendant to compel these women to commit the crime against nature upon his body. We will demonstrate that beyond any reasonable doubt to you, gentlemen, before the close of this case.”
We must assume that the government’s attorney, when he made the statement, believed he could produce the evidence. But at some time before he closed he knew that the picture he had drawn of the negro pugilist could not be verified. Yet not until after defendant’s attorney had made a motion to that effect after the close of the government’s case were the crime against nature counts withdrawn from the consideration of the jury. A desire, if not a duty, to be fair should have led the government’s attorney to withdraw that heinous charge the moment he knew it could not be substantiated.
*686Similarly with respect to the unsupported statement:
“It will fjirther appear that from time to time as he had the three women with him about the country, because of their differences and other reasons, he would drop one of them off and put her into- a sporting house temporarily, to relieve himself of the necessity of spending money carrying her about the country while he had the others.”
Defendant took the witness stand in his own behalf. On direct examination his testimony was limited to matters directly pertinent to the indictment. Oh cross-examination:
“Q. As a matter of fact that sickness [of a woman called Etta] was caused by blows from your hands, wasn’t it?
“A. No.
“Q. Well, it was caused by blow or blows from your hands?
“A. No, no.
“Q. Was it not caused by blows received by Etta in Pekin Theater here in Chicago at your hands ?
“A. No.
“Q. Did you not carry her out or have her carried out and put in the automobile and taken to the Washington Park Hospital after you had beaten her up?
“A. No, no.
>.< * * * * * * *
“Q. Hattie was in the hospital while you were there, was she?
“A. Not that I know of.
“Q. Did you have any difficulty with her about putting her in a hospital?
“A. No.
“Q. Did you have any similar difficulty with Belle—fisticuff difficulty?
“A. What is that?
“Q. You had struck Belle on various occasions?
“A. Never in my life.
“Q. Do you remember using an automobile tool on her?
“A. Never in my life.
“Q. You never did that?
“A. Never.
“Q. You say you did not?
“A. I say no, emphatically no.
“Q. And bruised her side until it was black and blue?”
[7] A cross-examiner, for the purpose of showing the character of the party on the stand from his own admissions, may go into collateral matters, but he is bound by the answers he obtains. What becomes of the rule if the cross-examiner, after obtaining a direct answer, is permitted to persist in repeating insinuating questions with the obvious object of having his innuendoes taken in preference to the sworn answer? If this negro pugilist had admitted that he had “beaten up” white women he might well have been characterized as “a brute.” The last four questions, and many of the others, were of the most pernicious type.
These matters-, might not of themselves lead to a reversal. They have been given to show the atmosphere of prejudice that pervades the record. They afford the setting in which must be viewed an erroneous admission of evidence. One witness was called on rebuttal. He was asked:
“Q. State tbe conversation you bad on Christmas Eve, 1910, with defendant respecting Etta.
“A. He asked me to go to the hospital with him to call upon her. He told me he had had a fight with her at Bob Mott’s Café on State street.”
*687The giving oí this testimony was duly objected to. We find nothing in the record to justify the injection into the case of the collateral question whether defendant exercised his fighting abilities upon women. When the situation thus improperly created is measured against the doubtfully sustainable prostitution counts, we are all convinced that defendant did not have a fair trial of that issue.
[8] It is urged that the assessment of punishment should be allowed to rest on the sexual intercourse counts. If one criminal act is charged in several ways, one good count, supported by competent evidence, will sustain a general verdict of guilty. If several criminal acts are charged, and if the sentences are. made to run concurrently, the same rule applies. But here, as already pointed out, the elements involved in the two sets of counts are not identical. The trial judge in fact assessed the punishment on the basis that defendant was guilty of both offenses. The government loses nothing as to the one offense, when the conviction therefor is upheld and the trial judge is permitted to exercise his discretion anew.
The former judgment and mandate of this court should be re-entered; and it is so ordered.