People v. Moore — 25 N.Y. Crim. 471

Majority

p. 471

SURPEME COURT—APP. DIVISION—FIRST DEP.

Jan. 20, 1911.

THE PEOPLE v. BELLE MOORE.

(142 App. Div. 402.)

Headnote

Compulsory Prostitution of Women—Actual use for Prostitution Immaterial—Intent—Trial—Acts of Judge not Prejudicial to Defendant.

A person may be convicted of a violation of the Penal Law in procuring and placing women in the custody of another for immoral purposes for a consideration received, although a trap was laid for the defendant and the persons receiving the custody of the women did not intend to use them for immoral purposes.

The word “ knowingly," as used in the statute, is limited to the receipt of the money, to the procuring and to the immoral purposes for which the women were procured; that is to say, relates to the intent and purpose of the defendant.

Evidence examined, and held, that the treatment of counsel for the defendant by the court at trial and a direction to show cause why he should not he punished for contempt when taken in connection with the charge that the jury should not consider the incident was not prejudicial to the defendant.

Affirmed March 14, 1911, 201 N. Y.

Appeal by the defendant, Belle Moore, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered against the defendant on the 19th day of May, 1910, convicting her of a violation of section 2460 of the Penal Law.

Alexander Karlin of counsel [Karlin & Busch, attorneys], for the appellant.

Robert C. Taylor of counsel [ Charles S. Whitman, District Attorney], for the respondent.

The defendant was convicted upon an indictment charging her with the crime of knowingly receiving money for and on account of procuring and placing women in the custody of another person for immoral purposes.

We have carefully examined the evidence in this case and find that the verdict of the jury was abundantly supported thereby. The only questions we deem it necessary to consider are as follows: 1. Section 2460 of the Penal Law as it existed at the time of the acts complained of, is entitled “ Compulsory prostitution of women,” and provided in subdivision 4 thereof that “ Every person who shall knowingly receive any money or other valuable thing for or on account of procuring and placing in the custody of another person for immoral purposes any woman, with or without her consent, is punishable by imprisonment not exceeding five years and a fine not exceeding one thousand dollars.” (See Consol. Laws, chap. 40 [Laws of 1909, chap. 88], §, 2460, subd. 4.)

It is conceded that a trap was laid for the defendant and that although she knowingly received a sum of money on account of procuring and placing in the custody of the principal witness for the People two women, with their consent, for immoral purposes, the appellant claims as that person did not intend to make use of them for immoral purposes and did not, as a fact, so make use of them, that the crime defined by the statute was legally impossible of accomplishment and that, therefore, no crime had been committed.

The contention is based upon People v. Jaffe ( 185 N. Y. 497 ) and People v. Teal (196 id. 372). In the Jaffe case the defendant had been convicted of an attempt to commit the crime defined by section 550 of the Penal Code which provides that “a person who buys or receives any stolen property, * * * knowing the same to have been stolen, * * * is guilty of criminally receiving such property.” The Court

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of Appeals held that as the property prior to its purchase by the defendant had lost its character as stolen property by having been retaken into the possession of the owner, the conviction was not warranted. The court said: “ The crime of which the defendant was convicted necessarily consists of three elements : first, the act; second, the intent; and third, the knowledge of an existing condition. There was proof tending to establish two of these elements, the first and second, but none to establish the existence of the third. This was knowledge of the stolen character of the property sought to be acquired. There could be no such knowledge. The defendant could not know that the property possessed the character of stolen property when it had not in fact been acquired by theft.”

In the Teal ease the defendant had been convicted of the crime of attempted subornation of perjury. The court stated the question presented as follows: “ Can a person be convicted of attempted subornation of perjury, upon evidence which would not support a conviction upon the charge of perjury, if the attempt had been successful? And held that under the language of the statute (Penal Code, § 96) “ a person who * * * willfully and knowingly testifies * * * falsely, in any material matter, * * * is guilty of perjury,” as the facts in regard to which the defendant attempted to suborn a person to make a false affidavit were not material to the issues presented in the action by the pleadings as they were at the time the false affidavit was attempted to be procured, there could have been no conviction of perjury of the person making such affidavit, and, therefore, the facts did not sustain a conviction of an attempt to suborn.

In each of those cases a peculiar statute was under consideration and the decisions are not to be extended where the reason therefor does not exist. In the Jaffe case the court said: “ The crucial distinction between the case before us and the pickpocket cases, and others involving the same principle, lies

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not in the possibility or impossibility of the commission of the crime, but in the fact that in the present case the act, which it was doubtless the intent of the defendant to commit, would not have been a crime if it had been consummated.” And in the Teal case, after referring to People v. Moran ( 123 N. Y. 254 ) and People v. Gardner (144 id. 119), the court said: “It is said that they are authorities for the doctrine that the question whether a person has made an attempt to commit a crime depends upon the mind and intent of the actor and not upon the result of the act. That is quite true as regards the crimes of larceny and extortion, which were the subjects of discussion in those cases, and it may be true in many other instances where the law looks only to the intent without reference to result. But a different rule has been established as to the crime of perjury. The statutes declare that materiality of the false testimony is of the essence of the crime. Without it the crime cannot be committed no matter what the intent may be.”

The statute under consideration limits the word “ knowingly ” to the receipt of the money, to the procuring, and to the immoral purposes for which the woman was procured; in other words, to the intent and the acts and the purposes of the defendant. She knowingly received the money; and she knowingly procured the women; and she intended to and did deliver them for immoral purposes, with their consent. So far as the defendant was concerned, her act was completed. If the crime depends upon the subsequent accomplishment of the ultimate purpose, it will be readily seen that conviction would be almost impossible and the statute a dead letter.

Take the present case. The women were procured and delivered to be taken to Seattle to be put into a house of prostitution. Supposing that the person receiving them had also had the guilty purpose and he and the women had started on their way and something had intervened to prevent the final accomplishment, a change of heart, a religious conversion of one or

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other of the parties, a railroad accident, a rescue, or any other interruption of the design and purpose, would that have affected the guilty knowledge and intent and purpose of the procuress who had done every act within her power to do, whose connection with the transaction had ceased, and make that innocent which otherwise would have been a crime ? We do not so read the statute. It should be interpreted in the light of the evil aimed at and no strained construction applied to its simple and straightforward language. We think that the evidence sustains every essential element of the crime.

2. It is claimed that the treatment accorded to counsel by the court upon the trial tended injuriously to affect the defendant. During the trial the court directed counsel to show cause before him on the following morning why he should not be punished for contempt. After hearing his explanation the court said that he would dispose of the question at the conclusion of the trial and directed the jury in emphatic language to absolutely banish from their minds that incident. “ It is not to be the subject of thought for any one of you, and still less the subject of comment, and it is not to have the slightest weight with you in determining what verdict you shall render in this case in the event that the case is sent to you to determine what the verdict shall be.” The incident was unfortunate, but the conduct of counsel brought it about and he is responsible therefor, and not the court. A careful reading of this record has impressed us with the patience and courtesy of the trial court. Very wide latitude was granted to the defendant’s counsel, but against repeated warnings he persisted in propounding obnoxious and immaterial statements thinly disguised in the form of questions which had been ruled out again and again. If there was any value in his exception he had it. His persistence in continuing a line of questioning against the ruling of the court finally reached the point where the court properly felt that its dignity and the proper conduct of the case required the

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action taken. We find nothing to condemn, and feel assured that the defendant took no harm by the incident.

The other matters urged upon our attention have been examined by us, but we find no reversible error upon this record.

The judgment appealed from should be affirmed.

Ingraham, P. J., Lattghlin, Scott and Miller, JJ., concurred.

Judgment affirmed.

Cases cited

People v. Jaffe 185 N. Y. 497 N.Y. 1906-06-21 p. 471
People v. Moran 123 N. Y. 254 N.Y. 1890-10-07 p. 474