Petition for A Writ of Certiorari — Gill v. United States

Supreme Court of the United States

Ocroser Term, 1953.

No. 186

JOHN PATRICK GILL,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

hdr CIRCUIT, AND BRIEF IN SUPPORT

Georce F’. CatLacuan,

105 West Adams Street,

Chicago 3, Illinois,

Attorney for Petitioner.

Myer H. Guapstoneg,

134 North La Salle Street,

Chicago 2, Illinois,

Of Counsel.

‘THE GUNTHORP. WARREN PRINTING COMPANY, CHICAGO

PAGE

Petition for Writ of Certiorari...................... 1

Detain TOG W 6 55s oie sien bold His hs AO 2

Waals Of Surin is ss 5 ass cacdedsds so se Peiscie 2

Goonstinns Prementeg 55 «65. ced-< pie abyss 0s ech Pe 2

Statement of Matter Involved....................... 4

Reasons for Allowance of the Writ.................. 13

CONOR arene obi Ca ok ooh kas bees ieieeO 21

SratTuTes AND Rute INvVOLveEp.

SSS MD BS Yb Ra repre pn ney: 13, 23

OUR Fk TAO te is Mis Ge 0s snes aemacanns ¥ Kes ees 23

Bention 18, Title 14/U. B. Ce ais... Beka. ee. SS 2, 13, 24

Sevtion 1145, Title 18, U. 8. C. .......05 0.06 0.000.. 2, 13, 23

Rule 7(c) of the Rules of Criminal Procedure for the

United States District Court. ..................00- 26

Amendment VI, Constitution of the United States.... 26

Section 10-4221, Burns Indiana Statutes............ 13, 24

Section 10-401, Burns Indiana Statutes.............. 16, 24

Section 9-1821, Burns Indiana Statutes.............. 16, 24

Chapter 57, Acts of the 14th Congress; 3 Storey’s

Statutes of the United States, page 1565........... 25

Illinois Revised Statutes, 1951, Chap. 38, Sec. 59a..... 26

Michigan Statutes Ann. Title 28, Sec. 28.279..........

List or AUTHORITIES.

Illinois Central Railroad Co. v. Illinois, 146 U. 8. 387,

A AERE SANDS Sie PRR artes Oar See eR ap epee 19

Beavers v. Henkel, 194 U. S. 73, 83............2-002. 20

People of Puerto Rico v. Shell Co., 302 U. S. 253, 266,

OG &. Ct. 167, 278, 63.1. Mid. 256... 5.2 eee ees 14

Johnson v. Yellow Cab Transit Co., 321 U. S. 383, 399,

64 S. Ct. 622, 88 L. Ed. 814, 825..............4... 14,16

United States v. Johnson, 323 U. S. 273, 276......... 20

United States v. Peterson, 64 F. 146................

Supreme Court of the United States

Octrosper Term, 1953.

No.

JOHN PATRICK GILL,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO TH#

UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT, AND BRIEF IN SUPPORT

THEREOF.

ff.

Cee

To the Honorable the Chief Justice and Associate Justices

of the Supreme Court of the United States:

Your Petitioner, John Patrick Gill, prays that a Writ

of Certiorari issue to review the judgment of the Circuit

Court of Appeals for the Seventh Circuit which was entered

in this case between the above named parties on May 8,

1953, affirming the judgment of the United States District

Court for the Northern District of Indiana, Hammond

Division. The petition for rehearing was denied on June

17, 1953.

THE OPINION BELOW.

The Circuit Court of Appeals for the Seventh Circuit

affirmed the judgment sentencing the Petitioner to imprison-

ment on Count 3 for a term of 10 years and fined $3,000.00;

he was sentenced to serve 5 years on Count 1 to run con-

currently with the sentence on Count 3; and he was also

sentenced to serve 6 months on Count 2 to run concurrently

with the sentence on Count 3.

The opinion has not yet been reported. It appears in

the record at pages 215-221.

JURISDICTION.

The jurisdiction of this Court is invoked under 28 U. 8.

C. 1254 (1).

QUESTIONS PRESENTED.

1. Count III of the indictment charged the petitioner

with an assault to commit a felony, sodomy, in violation of

Title 18, U. S. C., Section 113(b), the same taking place on

Lake Michigan within the special maritime jurisdiction of

the United States. Said Section 113(b) of Title 18 punishes

an assault with intent to commit a felony, except murder

or rape, by fine of not more than $3,000 or imprisonment

for not more than ten years or both. Sodomy is not a crime

under the Federal code. Section 13, Title 18, U. S. C. (the

Assimilative Crimes Act) punishes any crime, if committed

within the special maritime jurisdiction of the United

States, which, although not punishable by any enactment

of “ongress, would be punishable if committed within the

jurisdiction of the State in which said place is situated by

a like punishment provided for in the State Statutes. The

indictment alleged that the said assault took place in the

District of Northern Indiana. The Northern boundary of

+ EMEA NST RROD NY IRONIC OCR REN RA

3

Indiana as fixed by an Act of the 14th Uongress, is an

East and West latitudinal line ten miles North of the

Southern extreme of Lake Michigan. Indiana has a statute

which punishes an assault with intent to commit a felony

with imprisonment for not less than one nor more than

ten years; no fine is orovided for. The question presented

to this Court, with respect to the foregoing facts, is whether

the petitioner should not have been indjeted under the Indi.

ana statute defining and punishing an assault with intent

To commit a felony.

2. Based upon the facts recited in the foregoing para-

graph, the question presented is whether the petitioner

should not have been punished under Count Ill, if guilty

thereof, with imprisonment for not less than one year nor

more than ten years, without any fine, subject to the inde-

terminate sentence statute of the State of Indiana which

provides that instead of pronouncing against a defendant

a definite term of imprisenment after a verdict of guilty,

the court shall sentence the defendant for an indeterminate

period, stating the minimum and maximum limits thereof.

3. In addition to the facts recited in the foregoing para-

graph 1, it appears that the Eastern boundary line of the

State of Illinois is the center of Lake Michigan and that

the Western boundary line of the State of Michigan is the

same center line of Lake Michigan. The State of Illinois

punishes an assault with intent to commit a lewd or lascivi-

ous act upon the person of another with a fine of $500.00 or

imprisonment for one year or both fine and imprisonment.

Michigan does not punish an assault with intent to commit

a felony. The question is then presented whether the Trial

Court should not have required proof beyond a reasonable

doubt of the exact place where the alleged assault with

intent to commit sodomy was committed.

4. The Sixth amendment to the Constitution of the

—

4

United States provides that in all criminal prosecutions,

the accused shall be tried in the State and District wherein

the crime shall have been committed, which District shall

have been previously ascertained by law. The further ques-

tion presented is whether the situs of the alleged crimes

should not have been fixed with precision so it could be

determined whether the petitioner was being tried in the

proper district.

SUMMARY STATEMENT OF MATTER INVOLVED.

The Petitioner was tried in the District Court for the

Northern District of Indiana on three counts of an indict-

ment which charged him with (1) an assault on one Edna

Whimsett with a dangerous weapon, a piece of broken

bottle, with intent to do bodily harm and without just cause

or excuse; (2) assaulting her by striking, beating and

wounding her; and (3) assaulting her with intent to commit

the felony of sodomy. The indictment alleged that by com-

mitting these three assaults the defendant violated Sections

113(¢), (d) and (b), respectively, of Title 18 of the United

States Code. The indictment alleged that the three assaults

occurred on a vessel registered under the laws of the United

States while the vessel was on a voyage from Chicago,

Illinois, to Michigan City, Indiana, upon the waters of Lake

Michigan.

Under Count III of the indictment the Court assessed a

fine of $3,000 and sentenced the defendant to imprisonment

for a period of ten years. Under Count I of the indictment

the Court sentenced the defendant to imprisonment for a

period of five years and under Count II to imprisonment

for a period of six months. The sentences on Counts I and

II were to run concurrently with the sentence on Count ITI.

The principal witness, Edna Whimsett, testified that she

met the petitioner for the first time at the Jackson Park

EE ——

5

Yacht Club in Chicago, Illinois, and then took a boat ride

with the petitioner on Lake Michigan in a boat called the

‘Pat Pam’’ (Rec. 20-22). Before boarding the boat she

and the petitioner took a drink. ‘They travelled on Lake

Michigan for a while, stopping frequently to sun bathe, and

during said time she and petitioner had another gin high-

ball (Rec. 23, 24). During this time they were following

another boat called the ‘‘Norma Jean II.’’ At a certain

point in Lake Michigan, the exact location of which appears

to be indefinite, the Norma Jean IT broke down, having

motor trouble, and Mrs. Whimsett came along side the

Norma Jean II and asked whether ‘he passengers needed

any help. They then left the Norma Jean I, driving

straight East; they didn’t see the Norma Jean II again.

Mrs. Whimsett testified further that the petitioner took

off his trunks, threw her on her knees with a jujitsu hold

on her arm and asked her to commit an unnatural act

which she refused (Rec 27, 28). Then the petitioner, ac-

cording to the witness, ordered her to mix more drinks.

She had an ice pick with which she was cracking the ice

which he grabbed saying he was going to stick it into her,

but he didn’t touch her (Rec. 29). She poured her glass

of gin in the sink and the petitioner then struck her in

her eye with his fist and then ordered her to mix another

drink for both (Ree. 30). She poured her drink on a cushion

on the back of the boat and the petitioner, seeing her do

that, hit her in the other eye (Ree. 30).

She testified further that the petitioner ‘‘drove out into

the Lake, saying that they were not going to Michigan City,

until she did what he wanted her to do.’’ After the peti-

tioner had been driving for some few minutes, she ‘‘sneaked

up behind him”? and hit petitioner with a gin bottle. She

then threw the bettle on the floor and it broke; the blow

only stunned him for a minute. The petitioner thereupon

jumped out of his seat and picked up the neck of the bottle

6

and swung it at the witness, on her face and neck. He

slashed her arm with it, and also her hip (Ree. 31, 32). He

then knocked her down kicked her and choked her and

pushed her into the Lake (Ree. 33) the waves of which were

high and the water very rough. After a few minutes she

got back into the boat and he pushed her into the Lake

again ; she managed to get back in the boat (Ree. 34).

The witness testified further that she then took the wheel

of the boat and steered it, testifying further that ‘‘she

didn’t know where they were, and they seemed to be in

the middle of the Lake, as far as she was concerned.’’ She

saw a smokestack and steered toward it; the boat docked

at Michigan City (Ree. 35). She was asked where the

aets to which she was testifying were committed and she

replied, ‘‘We were bound to have been in Indiana, we

could not have been anywhere else.”’

After they left the Norma Jean II, the sea became very

rough, the waves were high enough to come over the back

of the boat and splash against the window (Rec. 50). The

farther out they were in the Lake, the rougher it was (Ree.

51). She hit the petitioner as hard as she could with the

bottle and thought the petitioner probably had a hard head.

About ten or fifteen minutes elapsed from the time she

struck bim until he pushed her into the Lake. After the

witness first saw the smokestacks in Michigan City, it took

about twenty minutes to get into the harbor (Rec. 65).

Government witness, Chauncey Robinson, the owner of

the boat ‘‘Norma Jean II,”’ testified that on July 7, 1951,

the day named in the indictment when the alleged crimes

were committed, he took a trip in his boat to Michigan

City. He noticed the Pat Pam, which was not following a

straight course but was going around in circles and zig-

zagging (Rec. 76). About five or six o’clock in the evening

the Norma Jean II broke down. The witness testified that

=z eae an imeem

7

his boat was probably three miles off shore from Burns

Ditch, and off the Indiana shore; he was ten or twelve miles

from Michigan City. The occupants of the Pat Pam asked

him if he needed any help (Rec. 76).

On the trip from Chicago to the point where the ‘‘Norma

Jean I1’’ had motor trouble he passed a black-red can buoy

that marks a shipwreck on the lower edge of the lake. It

is approximately east of South Chicago. This buoy is

shown on the Coast Guard geodetic chart, Government Ex-

hibit 26. The witness could tell where his position was by

looking at the buoy. The witness further testified, ‘‘We

had gone past the buoy before the motor shut off. I sup-

pose maybe half an hour before that we had passed this

buoy.’’ From the point where the motor broke down there

was a large water tower over near Burns Ditch, and it is

from this water tower that he could tell he was near Burns

Ditch. The ‘‘Pat Pam’’ had been following the ‘‘Norma

Jean II’’ for possibly a half hour or hour before the mo-

tor of his boat stopped running. Before that the ‘‘Pat

Pam’’ was about half a mile away (Ree. 78-79).

On cross-examination, the witness testified that at times

it is most difficult to tell how far one is away, while on

water, from an object that appears on shore, and that the

overcast is one of the factors that makes it difficult to see

distances. He stated that it is pretty easy to be mistaken

about how far away one is from a given point when one is

on water looking towards that point on land. The witness

was not sure that the landmark for Burns Ditch is shown

on the map, but the witness knew that it is close to Burns

Ditch. He couldn’t tell exactly how far off shore his boat

was at the time the ‘‘Pat Pam’’ came up to it, and that he

would have to get a sextant angle on the height of the ob-

ject, to tell exactly how far away it is. He did not do

that. The witness had no way of knowing how far he was

from the Indiana shore except from the course he followed

after he left the black can buoy. At the time the ‘‘Pat

Pam’’ came up to his boat there were moderate swells in

the sea (Rec. 80).

The witness made no ‘‘fix’’ to determine whether he was

3 miles off shore. It was merely his recollection. Since the

incident took place he and the other people on the boat

talked about how far they were off shore and no two wit-

nesses on the boat agreed. After the ‘‘Pat Pam’’ came up

to his boat he didn’t know whether it headed north or in

what direction it went. He traveled along on one motor at

about 5 miles an hour (Ree. 81).

It took about an hour to repair the motor and then it

took about an hour to get into Michigan City at a speed of

about 10 miles per hour. They got into Michigan City at

8:00 o’clock daylight saving time (Rec. 82).

The witness marked with an X, the buoy, which he previ-

ously described in his testimony, on Government’s Exhibit

26, a map of Lake Michigan, U. 8. Lake Survey from the

Corps of Engineers, U. S. Army, Chart No. 75 (Ree. 115).

He couldn’t mark the place where the motor broke down.

The buoy was on the right side of his boat. The witness

then marked an X at the approximate spot on the map

where his motor broke down, and marked the water tower

which the witness said he observed as Point XA on Gov-

ernment’s Exhibit 26 (Rec. 116).

On cross-examination, he testified that the X inside of

the zero, marked on Government’s Exhibit 26, might be 3

or 4 or as much as 5 miles away; the witness didn’t know

exactly. The spot he marked is not an accurate designa-

tion (Rec. 116). He didn’t know what direction the ‘‘Pat

Pain’’ took after it left his boat because he was working on

the motor (Ree. 117).

The Petitioner, John P. Gill, denied all of the accusations

of Mrs. Whimsett. He testified that a short time prior to

9

the trial, his occupation was that of bookmaker. In 1939,

he was convicted for illegal possession of alcohol and was

given probation for two years. When he was 18 years old

he was convicted of robbery and placed on probation. At

the time of the trial he was in the rug cleaning business

(Ree. 99).

About ten or fifteen minutes after he had left the Norma

Jean II, he took over the operation of the boat. Mrs.

Whimsett was standing at the sink mixing a drink and

shortly after that he received a blow on the head. He fell

off the seat and grabbed something to stop himself from

falling; he was in a dazed condition. The first thing he

was aware of, after the blow on the head, was that he and

Mrs. Whimsett were on the floor. They were tussling, she

was trying to strike, bite and scratch him and he was

struggling to stop her and to pin her down (Rec. 109, 110).

He saw a severe cut on Mrs. Whimsett’s elbow and ob-

served that she was losing a lot of blood. He used his

handkerchief and other materials to stop the bleeding and

drove the boat as fast as he could to Michigan City. The

speed was about 25 miles an hour and it took him between

45 minutes and an hour to drive the boat into Michigan

City (Ree. 112).

Mrs. Whimsett drove the boat for about twenty to twenty-

five minutes after they had left the disabled Norma Jean

II; at that time they’ were not within sight of land and he

told her he would have to drive or they would never get

to Michigan City (Ree. 115). He denied all of Mrs. Whim-

sett’s accusations in detail (Rec. 120-122). He received a

eut on his head from Mrs, Whimsett’s attack with the gin

bottle and his head was paining that day and the next day.

When he was at the United States Marshal’s office, a doc-

tor was sent for and he was treated for the cut on his head

(Rec. 132).

10

Two witnesses for the Petitioner, Thomas Tiffany (Rec.

134-138) and Donald R. Bullington (Rec. 138-146) testified

that they were life guards working for the City of Chicago.

Each of them made an attempt to get into the Pat Pam

from its rear on a calm day and it was impossible for them

to do so. There was nothing on the boat to grasp and the

wood was slippery because their hands were wet.

Dr. Elsbeth Gehorsam testified that she was a practicing

psychiatrist and had been connected with the Gailor Psy-

chiatric Hospital at the University of Tennessee. In August

of 1946, she became acquainted with the complaining wit-

ness, at that time named Edna O’Rear. She found that

Mrs. O’Rear was a psychopathic personality meaning an

unstable personality with a tendency to explosive reactions,

to episodic conflicts with environment. There is no cure

for a psychopathic personality (Rec. 156).

Dr. Harry R. Hoffman (Rec. 164-175), a psychiatrist who

had been connected with the Behavior Clinic of the Crim-

inal Court of Cook County, Illinois, from 1931 to 1941, and

who was the State Alienist of the State of Illinois from 1941

to 1949 and who had been Director of the Chicago Neuro-

psychiatric Institute, testified with respect to a hypothetical

question which included the conclusions and diagnosis of Dr.

Gehorsam, that Mrs. Whimsett was a psychopathic per-

sonality.

The witness testified further:

‘‘These individuals, psychopathic personalities, do

not profit by experience; their judgment is impaired;

they are not benefited by punishment or treatment.

They show no remorse for their antisocial behavior,

and they have outbursts or episodes of aggressive or

emotional disturbances.

‘*Many of them may be placid individuals, like sex-

ual psychopaths; many of them may be chronic aleo-

holics or drug addicts; many of them are prostitutes;

1L

and many of them are recidivists, whose behavior is

not benefited by incarceration in any kind of an insti-

tution. They do have interims where behavior is fairly

within the range of normal, where medical men have

placed the term or mask of sanity upon them, upon

this type of individual.’’

The bulk of psychopatic personalities are wholly devoid

of remorse for their acts and are given to exaggeration and

enlargement and magnification of minor events. It is seen

frequently where women accuse people of certain acts and

magnify it to such an extent that other people really be-

lieve it because of their emotional state. One of the com-

mon symptoms of a psychopathic personality is to crave

the center of attention. These emotional outbursts usually

come in episodes, sporadic periods, and it may take vent

on people close to them, people whom they love and ad-

mire, or it may take place with strangers (Ree. 170). An

unprovoked attack on a stranger would be a symptom of

a psychopathic personality (Rec. 171).

The petitioner introduced an exhibit, the same being a

decree of divorce ubtained by Ralph A. O’Rear from Edna

R. O’Rear (Rec. 176, 177). Among the findings of the

Court in the said decree of divorce was the following:

‘‘That the defendant frequently quarreled and nagged

and abused the complainant, ordered him to leave the

house, and on one occasion drew a knife on him and

threatened to kill him if he closed his eyes, as charged

in the bill.’’

In rebuttal, the Government produced a witness, Helen

Kinson, who testified that she was a passenger on board the

Norma Jean II on July 7, 1951. About half an hour to an

hour later she saw another boat, which looked like the Pat

Pam. It was just idling and drifting and she saw no ac-

tivity at the time. She was not positive that the boat she

saw was the Pat Pam. It was between the Norma Jean II

12

and the Indiana shore line. She looked through binoculars

(Ree. 188-190).

Robert Swindell, Jr., another witness for the Govern-

ment (Rec. 186, 187) testified similarly to Helen Kinson.

He was looking at this second boat through binoculars but

didn’t see the name ‘‘ Pat Pam,’’ thereon.

REASONS FOR ALLOWANCE OF THE WRIT.

a

:

The Circuit Court of Appeals held that Count III of the

indictment alleging an assault with intent to commit the

felony of sodomy charged a crime within the meaning of

Section 113(b) of Title 18, United States Code. Since

sodomy is not a crime under the Federal Code, the hold-

ing of the Court of Appeals, and its reason, are probably

in conflict with applicable decisions of this Court.

The Court of Appeals reasoned that Section 1 of Title

18 of the United States Code defines a felony as any of-

fense punishable by death or imprisonment for a term

exceeding one year.

The Court of Appeals further states that sodomy, when

committed within the boundaries of Indiana and within the

maritime and territorial jurisdiction of the United States

is a crime against the United States since Section 10-4221

of Burns Indiana Statutes Annotated defines sodomy and

punishes the same with a fine of not less than $100 nor

more than $1,000, to which may be added imprisonment in

the State prison for not less than two nor more than four-

teen years. Sodomy, therefore, being punished by imprison-

ment of more than one year, becomes a felony within the

purview of Section 1 of Title 18, U.S. C.

The Court of Appeals further reasoned that if on the trip

that the ‘‘Pat Pam’’ made on Lake Michigan, the petitioner

had committed the crime of sodomy and had been con-

victed and sentenced for from two to fourteen years by the

proper District Court for the crime of sodomy as found in

the Indiana Statute, the crime was one against the United

14

States and specifically falls within the classification of

felony as defined in Section 1, U. 8. C. (Ree. 217, 218). But

the petitioner is not charged with committing sodomy.

Since sodomy is not a crime under the Federal Code, and

since there are no common law crimes in the Federal Crim-

inal jurisprudence, it was necessary to indict the petitioner

under the Assimilative Crimes Act, as follows (Sec. 13,

Title 18, U. S. C.):

‘Whoever within or upon any of the places now ex-

isting or hereafter reserved or acquired as provided

in section 7 of this title, is guilty of any act or omis-

sion which, although not made punishable by any en-

actment of Congress, would be punishable tf committed

or omitted within the jurisdiction of the State, Ter-

ritory, Possession, or District in which such place is

situated, by the laws thereof in force at the time of

such act or omission, shall be guilty of a like offense

and subject to a like punishment.’’ (Italics ours.)

In the case of People of Puerto Rico v. Shell Co., 302 U.S.

2538, 266, 55 S. Ct. 167, 173, 82 L. Ed. 235, this Court held

that prosecutions under U. S. C. A. Section 468 (the As-

similative Crimes Act) ‘‘are not to enforce the laws of

the state, territory or district, but to enforce the federal

law, the details of which, instead of being recited, are

adopted by reference.’’

In the case of Johnson v. Yellow Cab Transit Co., 321

U. 8. 383, 399, 88 L. Ed. 814, 825, 64 S. Ct. 622, the Supreme

Court of the United States said:

“«* * * Congress has three times brought still nearer

the effective date of state penal laws applicable on

federal reservations, to-wit, by the amendments of

June 15, 1933, 48 Stat. 152, c. 85; June 20, 1935, 49 Stat.

394, c. 284, and June 6, 1940, 54 Stat. 234, c. 234. The

last Amendment now controls whereby

‘¢¢Whoever * * * shalldo * * * any act or thing

which is not made penal by any laws of Congress, but

which if committed or omitted, within the jurisdiction

15

of the State, Territory, or district in which such place

is situated, by the laws thereof in force on February

1, 1940, and remaining in force at the time of the doing

* * * of such act or thing, would be penal, shall be

deemed guilty of a like offense and be subject to a like

punishment.’ 18 U. 8. C. A. § 468, 7 F. C. A. title 18,

§ 468. The very important purpose of this legislation

in the working of our dual system, as expounded after

the fullest consideration heretofore given to this sub-

ject by this Court, bears repetition:

‘while the statute leaves no doubt where acts are done

on reservations which are expressly prohibited and

punished as crimes by a law of the United States, that

law is dominant and controlling, yet, on the other hand,

where no law of the United States has expressly pro-

vided for the punishment of offenses committed on

reservations, all acts done on such reservations which

are made criminal by the laws of the several states are

left to be punished under the applicable state statutes.

When these results of the statute are borne in mind it

becomes manifest that Congress, in adopting it, sed-

ulously considered the twofold character of our con-

stitutional government, and had in view the enlight-

ened purpose, so far as the punishment of crime was

concerned, to interfere as litle as might be with the

authority of the states on that subject over all territory

situated within their exterior boundaries, and which

hence would be subject to exclusive state jurisdiction

but for the existence of a United States reservation.

In accomplishing these purposes it is apparent that the

statute, instead of fixing by its own terms the punish-

ment for crimes committed on such reservations which

were not previously provided for by a law of the United

States, adopted and wrote in the state law, with the

single difference that the offense, although punished as

an offense against the United States, was neverthe-

less punishable only in the way and to the extent that

it would have been punishable if the territory em-

braced by the reservation remained subject to the ju-

risdiction of the state.’ United States v. Press Pub.

Co., 219 U.S. 1, 9, 10, 55 L. ed. 65, 66, 67, 31 S. Ct. 212,

21 Ann. Cas. 942.’’

16

To the same effect is the case of Williams v. United States

of America, 327 U. S. 711, 90 L. Ed. 962, 66 S. Ct. 778,

which construed another form of the Assimilative Crimes

Act in force and effect in 1945.

If the crime in Count III of the indictment had been

committed within the State of Indiana, the petitioner should

have been indicted within the purview and provisions of

the Assimilative Crimes Act under Section 10-401 of Burns

Indiana Statutes Annotated, reading:

‘¢ Assault and battery with intent to commit felony.—

Whoever perpetrates an assault or assault and battery

upon any human being with inteni to commit a felony,

shall, on conviction, be imprisoned in the state prison

for not less than one (1) nor more tnan ten (10) years.”’

II.

The Court of Appeals in holding that the sentence of the

Petitioner under Count III is fixed by Section 113(b),

Title 18, U. S. C., rendered a decision in conflict with the

applicable decisions of this Court. This Honorable Court,

in construing the Assimilative Crimes Act has held that

the punishment to be imposed upon a defendant who com-

mits a crime within the purview of that Section must be

the same as that provided for by the Statutes of the State

in which the crime was committed. Johnson v. Yellow Cab

Transit Co., 321 U. S. 383, 399, 88 L. Ed. 814, 825, 64 S. Ct.

622; Williams v. United States, 327 U. 8. 711, 90 L. Ed. 962,

66 S. Ct. 778.

Section 10-401 of the Burns Indiana Statutes Annotated

punishes an assault with intent to commit a felony by im-

prisonment for not less than one year nor more than ten

years. This is qualified by Section 9-1821, Burns Indiana

Statutes Annotated which provides that ‘‘instead of pro-

nouncing against such defendant a definite term of impris-

re

17

onment, the Court, after such finding or verdict of guilty,

shall pronounce against him a sentence for an indeterminate

period, stating in such sentence the maximum and minimum

limits thereof.’’

The Trial Court did not so sentence the petitioner, con-

trary to the Assimilative Crimes Act and applicable deci-

sions of this Court.

II.

The finding of the Court of Appeals that the crime alleged

in Count III of the indictment was committed in the State

of Indiana was based upon highly speculative evidence and

since there was no evidence whatever proving the location

in Lake Michigan where the alleged crimes were committed,

the Court of Appeals has decided an important question of

Federal law which does not seem to have been settled by

this Court, but should be so settled. The finding of the

Court of Appeals, furthermore, has so far departed from

the accepted and usual course of judicial proceedings, as

to call for an exercise of this Court’s power of _supervision.

Under the Assimilative Crimes Act it was imperative that

the prosecution prove that the crimes were committed with-

in the State of Indiana. The Northern boundary of Indiana

was established by an Act of Congress approved April 19,

1816, which Act is set forth in the appendix hereof. The

Northern boundary of Indiana was fixed as an East and

West line drawn through a point ten miles North of the

Southern extreme of Lake Michigan.

The Court of Appeals states that the complaining witness

testified positively that at the time of the commission of

the crimes charged, the ‘‘Pat Pam’’ was in Indiana. The

Court observes further ‘‘she did not explain, however, how

she knew this’’ (Ree. 219). On this point the prosecuting wit-

ness testified, ‘‘We were bound to have been in Indiana; we

could not have been anywhere else.’’ This was in reply to

ne

a question, ‘‘In what State were you when he did those

things?’’ (Rec. 36.) But at another point, after her testi-

mony that the petitioner pushed her into the Lake (Rec.

34) she testified that she didn’t know where they were,

and they seemed to be in the middle of the Lake, ‘‘as far

as she was concerned’’ (Rec. 35). How could Mrs. Whim-

sett have known that the alleged crimes took place in Indi-

ana? Certainly she didn’t know that the boundary line of

Indiana extended ten miles North of the Southern boundary

of Lake Michigan.

The further testimony upon which the Court found that

the crimes were committed within the State of Indiana is

based upon that of Chauncey Robinson, the owner of the

‘Norma Jean II’’. The Court of Appeals stated that when

the Norma Jean II broke down with engine trouble and at

the time the Pat Pam came up to it, the Norma Jean II

was about three miles out in the Lake from Burns Ditch.

Robinson marked the position with an x on the United

States Lake Survey map, Government’s Exhibit 29. That

testimony only states where the Norma Jean IT was when

Robinson last saw the Pat Pam. The Court of Appeals,

however, overlooked his testimony on cross-examination

that he couldn’t tell exactly how far off shore his boat was

at the time the Pat Pam came up to it, and that he would

have to get a sextant angle on some object on the shore to

tell exactly how far away the shore was; that he did not

do. He further testified that since the incident took place,

he and a number of other people on his boat talked about

how far they were off shore and no two witnesses on the

boat agreed (Rec. 80, 81).

That testimony of Robinson, however, only attempts to

fix, speculatively, of course, where the Norma Jean II broke

down. It does not fix the location where the alleged assault

took place.

18

19

Robinson testified that after the Pat Pam came up to his

boat at the time it had broken down, he didn’t know whether

it headed North or in what direction it went (Ree. 81; 117).

It was at least twenty or twenty-five minutes after the Pat

Pam had passed and lost sight of the Norma Jean IT that

the sea became very rough, according to Mrs. Whimsett

(Ree. 50). The farther out in the Lake they went the

rougher it was (Rec. 51). Certainly this would indicate

that the Pat Pam sailed farther North from the Indiana

shore line and not closer to it, and hence, North of the

place where the Norma Jean II had stopped for repairs.

The Court of Appeals noted that about an hour and a half

after the Norma Jean II had left the meeting point with

the Pat Pam, two witnesses saw the Pat Pam or a boat of

the same lines between the Norma Jean II and the shore.

They saw this through binoculars and it seemed to be drift-

ing. But, according to both Mrs. Whimsett and the peti-

tioner, at that time the Pat Pam was speeding on its way

to Michigan City to get medical help for Mrs. Whimsett.

It was essential to prove the exact place in Lake Michigan

where the alleged crime took place. If the alleged assaults

took place North of the Indiana line, and West of the center

line of Lake Michigan, they took place in the State of IIli-

nois where an assault with intent to commit a lewd and

lascivious act is punished as a misdemeanor with imprison-

ment of less than one year. If it took place North of the

Indiana line and East of the center line of Lake Michigan,

the alleged offenses took place in the State of Michigan

where assault to commit sodomy is not a crime. The

center line of Lake Michigan constitutes the boundary

line between the State of Illinois and the State of Michi-

gan. United States v. Peterson, 64 F. 146, Illinois Central

Railroad Co, v. Illinois, 146 U. 8. 387, 484.

20

IV.

In holding that the alleged crimes were committed in the

State of Indiana, upon no evidence whatever, the Court of

Appeals rendered a decision in conflict with the Sixth

Amendment to the Constitution of the United States and

in conflict with applicable decisions of this Court.

The Sixth Amendment to the Constitution of the United

States provides that in all criminal prosecutions, the ac-

cused shall be tried in the State and District wherein the

crime shall have been committed, which District shall have

been previously ascertained by law.

In the case of United States v. Johnson, 323 U. 8. 273,

276, 65 S. Ct. 251, 89 L. Ed. 236, this Honorable Court held:

‘‘Questions of venue in criminal cases, therefore, are

not merely matters of formal legal procedure. They

raise deep issues of public policy in the light of which

legislation must be construed. If an enactment of Con-

gress equally permits the underlying spirit of the con-

stitutional concern for trial in the vicinage to be re-

spected rather than to be disrespected, construction

should go in the direction of constitutional policy even

though not commanded by it.’’

In the case of Beavers v. Henkel, 194 U. S. 73, at page 83,

this Court stated:

‘‘The locality in which an offense is charged to have

been committed determines under the Constitution and

laws the place and court of trial. And the question

is what steps are necessary to bring the alleged of-

fender to that place and before that court.’’

Counsel have heretofore, under point III hereof, set out

that there is no evidence in the record to prove in what

District the alleged crimes were committed. In view of the

evidence introduced, they could have been committed in the

State of Michigan, or the State of Illinois, rather than in

the State of Indiana.

21

Conclusion.

For the foregoing reasons, this Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

Georce F. CatLacuan,

Attorney for Petitioner.

Myer H. Guapstone,

Of Counsel.

APPENDIX.

THE STATUTES INVOLVED.

Since counsel for the defendant believe that it is of ex-

treme importance that this Court have in mind the statutes

involved before any of the evidence is presented herein,

they submit the said statutes at this point.

Section 1, Title 18, U. 8. C.

‘*Any offense punishable by death or imprisonment

for a term exceeding one year is a felony.’’

Section 113, Title 18 U.S. C.

‘*Whoever, within the special maritime and terri-

torial jurisdiction of the United States, is guilty of

an assault shall be punished as follows:

“(a 6.8: *

‘*(b) Assault with intent to commit any felony, ex-

cept murder or rape, by fine of not more than $3,000

or imprisonment for not more than ten years, or both.

‘*(c) Assault with a dangerous weapon, with in-

tent to do bodily harm, and without just cause or ex-

cuse, by fine of not more than $1,000 or imprisonment

for not more than five years, or both.

‘‘(d) Assault by striking, beating, or wounding,

by fine of not more than $500 or imprisonment fer not

more than six months, or both.”’

Section 7, Title 18 U.S. C.

‘‘The terms ‘special maritime and territorial juris-

diction of the United States,’ as used in this title, in-

cludes :

“*(1) e eve

‘*(2) Any vessel registered, licensed, or enrolled

under the laws of the United States, and being on a

voyage upon the waters of any of the Great Lakes,

24

or any of the waters connecting them, or upon the

Saint Lawrence river where the same constitutes the

International Boundary Line.’’

Section 13, Title 18 U.S. C.

‘‘Whoever within or upon any of the places now

existing or hereafter reserved or acquired as pro-

vided in section 7 of this title, is guilty of any act or

omission which, although not made punishable by any

enactment of Congress, would be punishable if com-

mitted or omitted within the jurisdiction of the State,

Territory, Possession, or District in which such place

is situated, by the laws thereof in force at the time

of such act or omission, shall be guilty of a like offense

and subject to like punishment.’’

Section 10-4221 of Burns Indiana Statutes, Annotated.

‘‘Whoever commits the abominable and detestable

crime against nature with mankind or beast; or who-

ever entices, allures, instigates or aids any person

under the age of twenty-one (21) years to commit

masturbation or self-pollution shall be deemed guilty

of sodomy, and on conviction, shall be fined not less

than one hundred dollars ($110) nor more than one

thousand dollars ($1,000), to which may be added im-

prisonment in the state prison not less than two (2)

years nor more than fourteen (14) years.’’

Other statutes of the State of Indiana which are involved

are Section 10-401 and Section 9-1821, Burns Indiana Stat-

utes, Annotated. These are as follows:

**10-401. Assault and battery with intent to commit

felony.—Whoever perpetrates an assault or assault

and battery upon any human being with intent to com-

mit a felony, shall, on conviction, be imprisoned in the

state prison for not less than one (1) nor more than

ten (10) years.’’

‘**9-1821. Indeterminate sentences—Verdict—Age—

Sentence to State Prison.—Whenever any male person

thirty (30) years of age or over, shall be on trial for

25

any felony, except treason or murder, the court or jury

trying the cause shall ascertain only his age and

whether he is guilty of the offense charged ; and if more

than one (1) offense be charged, it shall be found on

which, if any, of such offenses he is guilty, and of

which he is not guilty. Instead of pronouncing against

such defendant a definite term-of imprisonment, the

court, after such finding or verdict of guilty, shall pro-

nounce against him a sentence of imprisonment in the

State Prison for an indeterminate period, stating in

such sentence the maximum and minimum limits there-

of, as such maximum and minimum limits of time for

the punishment of such offense are now or may here-

after be prescribed by law, excepting in such cases as

are provided for in section 2 (§ 9-1820) of this act.’’

To determine whether the alleged offenses occurred with-

in the boundaries of the State of Indiana, the Act of Con-

gress of 1816 establishing and fixing the Northern Boun-

dary Line of the State of Indiana is herewith set forth

(Chap. 57, Acts of the 14th Congress; 3 Storey’s Stat. of

the United States, page 1565) :

‘*Chap. 57. An act to enable the people of the In-

diana territory to form a constitution and state gov-

ernment, and for the admission of such state into the

Union on an equal footing with the original states.

‘“*$2. That the said state shall consist of all the

territory included within the following boundaries, to

wit: bounded on the east, by the meridian line which

forms the western boundary of the state of Ohio; on

the south, by the river Ohio, from the mouth of the

Great Miama river to the mouth of the river Wabash;

on the west, by a line drawn along the middle of the

Wabash, from its mouth to a point where a due north

line drawn from the town of Vincennes would last

touch the northwestern shore of the said river; and

from thence, by a due north line, until the same shall

intersect an east and west line, drawn through a point

ten miles north of the southern extreme of Lake Mich-

igan; on the north by the said east and west line, until

Dltemrenreseseescerpeenensomen snc rt ASE

26

the same shall intersect the first mentioned meridian —

line which forms the western boundary of the state of ©

Ohio.’’ 4

Rule 7(c) of the Rules of Criminal Procedure for the —

United States District Courts, adopted by the United States —

Supreme Court: 4

«c*# * * The indictment or information shall state ~

for each count the official or customary citation of the =

statute, rule, regulation or other provision of law —

which the defendant is alleged to have violated. Error ©

in the citation or its omission shall not be ground for ©

dismissal-of the indictment or information or for re- ©

versal of a conviction if the error or omission did not ~

mislead the defendant to his prejudice.’’ :

Ill. Rev. Staiutes 1951, Chapter 38, Section 59a:

‘‘An assault made with an intent to commit a lewd ~

or lascivious act upon the person of another shall sub- |

ject the offender to a fine not exceeding $500.00 or |

imprisonment in the County Jail or Workhouse for a ~

period not exceeding one year or both such fine and ©

imprisonment.’’ ‘

Mich. Stat. Ann. Title 28, Section 28.279, reading:

‘‘ Any person who shall assault another with intent ©

to do bodily harm, less than the crime of murder, shally 4

be guilty of a felony punishable by imprisonment in —

the state prison not more than ten (10) years, or by 3

fine of not more than five thousand dollars.”’’ ;

Amendment VI, Constitution of the United States: 3

‘Tn all criminal prosecutions, the accused shall en- ~

joy the right to a speedy and public trial, by an im-— 4 4

partial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be :

informed of the nature and cause of the accusation; to 4

be confronted with the witnesses against him; to have ©

compulsory process for obtaining witnesses in his ~

favor, and to have the Assistance of Counsel for his ~

defence.’’ 4

Page

Opinion below- -.--.-....-------------------------------- 1

Tie i aS Cea = nema ee memomanipene 1

Questions presented - - -...-------------------------------- 2

Statutes invelved.. oe os oe cn soe se enkenese 28 2

ian ee ie i ees ae makine Saleen enon *

Angoment... ... ..-..--- 2.22 scen ncanessesoseseceswnseeas 7

ee a Gin tein nko ape namnh nea wibaaeN 12

CITATIONS

Cases:

Delaney v. United States, 263 U. 8. 586_....------------- 12

Dunaway v. United States, 170 F. 2d 11-.--------------- 9

George v. United States, 125 F. 2d 559... --------------- 10

Kann v. United States, 323 U. S. 88. ._...-------------- 12

United States v. Chiarelli, 192 F. 2d 528, certiorari denied,

O59 'U; B. Old cab ees Ney aeue 10

United States v. Johnson, 319 U. 8. 503.--..------------- 12

United States v. Karavias, 170 F. 2d 968--..------------ 10

Williams v. United States, 327 U. 8. 711---.------------- 9

Statutes:

Act of April 19, 1816, 3 Stat. 289, c. 57, § 2.--------.--- 10

AT 8 a oe ee haem 9

CEH BR SR oie Bc RSP Seg Sea ar mene eee ay ee FS 2-3, 8

18 U. S. C. 13, the Assimilative Crimes Act---~-~-------- 3,7

18 U. 8. C. 113:

D) oon ono nee ccc eee esen snap ocscenses 2, 8,9

Ges soe eben dae kenecinnsaeeeeoiions 2

eo caeiom enue ae mcimail iemd aries 2

Burns Indiana Statutes, Annotated (1942 Replacement)

© -268E wos has cceeecncucSendesnmeaceomes 8

§ 10-401_....-....-.--.--- 2-6 -- +--+ + ene 4,8

© OOM gn ik as es ccececckaole aie 3,9

268145—53

es 2

Ynthe Supreme Gourt of the Buited States

OcroBeR TrRM, 1953

No. 186

JOHN Patrick GILL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the Court of Appeals (R. 215-

221) is not yet reported.

JURISDICTION

The judgment of the Court of Appeals was

entered on May 8, 1953 (R. 222), and a petition for

rehearing (R. 227-238) was denied on June 17,

1953 (R. 239). The petition for a writ of certi-

orari was filed on July 17, 1953. The jurisdiction

of this Court is invoked under 28 U. S. GC.

1254 (1). See also Rules 37 (b) (2) and 45 (a),

F. R. Crim. P.

(1)

‘siege eer arareeuatecnra ne ayrcr gen omer apnea anesin

2

QUESTIONS PRESENTED

1. Whether an assault with intent to commit

sodomy during a voyage on Lake Michigan was

punishable as a felony under 18 U.S. C. 113 (b),

or whether a State statute applied by reason of

18 U. 8. C. 13, the Assimilative Crimes Act.

2. Whether venue of the assaults charged was

properly proved to be in the Northern District of

Indiana.

STATUTES INVOLVED

18 U.S. C. 1138:

Whoever, within the special maritime and

territorial jurisdiction of the United States,

is guilty of an assault shall be punished as

follows:

* * * * *

(b) Assault with intent to commit any

felony, except murder or rape, by fine of

not more than $3,000 or imprisonment for

not more than teu years, or both.

(c) Assault with a dangerous weapon,

with intent to do bodily harm, and without

just cause or excuse, by fine of not more

than $1,000 or imprisonment for not more

than five years, or both.

(d) Assault by striking, beating, or

wounding, by fine of not more than $500 or

imprisonment for uot more than six months,

|

or both.

18 U. 8. C. 7:

_ . 2

3

The term ‘“‘special maritime and terri-

torial jurisdiction of the United States,’’

as used in this title, includes:

* * * * *

(2) Any vessel registered, licensed, or en-

rolled under the laws of the United States,

and being on a voyage upon the waters of

any of the Great Lakes, or any of the

waters connecting them * * *,

18 U. 8. C. 13, the Assimilative Crimes Act:

Whoever within or upon any of the places

now existing or hereafter reserved or ac-

quired as provided in section 7 of this title,

is guilty of any act or omission which, al-

though not made punishable by any enact-

ment of Congress, would be punishable if

committed or omitted within the jurisdic-

tion of the State, Territory, Possession, or

District in which such place is situated, by

the laws thereof in force at the time of such

act or omission, shall be guilty of a like

offense and subject to like punishment.

Burns Indiana Statutes, Annotated, § 10-

4221 (1942 Replacement) :

Whoever commits the abominable and de-

testable crime against nature with mankind

or beast; or whoever entices, allures, insti-

gates or aids any person under the age of

twenty-one (21) years to commit masturba-

tion or self-pollution shall be deemed guilty

of sodomy, and, on conviction, shall be fined

not less than one hundred dollars [$100]

nor more than one thousand dollars [$1,-

4

600], to which may be added imprisonment

in the state prison not less than two [2]

years nor more than fourteen [14] years.

Burns Indiana Statutes, Annotated, § 10-

401 (1942 Replacement) :

Assault and battery with intent to com-

mit felony—-Whoever perpetrates an as-

sault or assault and battery upon any

human being with intent to commit a fel-

ony, shall, on conviction, be imprisoned in

the state prison for not less than one [1]

nor more than ten [10] years.

STATEMENT

Petitioner was charged in a three-count indict-

ment with assaults upon Kdna Whimsett (1)

with a broken bottle with intent to do bodily

harm; (2) by striking, beating and wounding her;

and (3) with intent to commit the felony of

sodomy, in violation of 18 U. 8. C. 113 (e), (d),

and (b), respectively (R. 2-3). The indictment

charged that the assaults occurred on a boat reg-

istered with the United States Coast Guard during

a voyage on Lake Michigan from Chicago, Illinois,

to Michigan City, Indiana. The parties agreed by

stipulation as to this registration (R. 14). A

jury was waived (R. 12). The court found peti-

tioner guilty on all three counts, and sentenced

him to imprisonment for ten years and a $3,000

fine on count three, and to imprisonment for five

years and for six months on counts one and two,

respectively, to run concurrently with the sentence

5

on count three (R. 199). On appeal, the Court

of Appeals affirmed the conviction (R. 200-201,

222). The evidence, which, except on the issue of

venue, is not in controversy here, may be sum-

marized as follows:

On the afternoon of July 7, 1951, petitioner

asked Mrs. Whimsett to take a ride with him on

Lake Michigan in a motor boat, the Pat Pam,

from Chicago to Michigan City, Indiana (R. 22).

Proceeding in an easterly direction, they followed

another boat, the Norma Jean II, also bound for

Michigan City, and stopped at intervals to drink

gin highballs and to take sun baths (R. 23-25).

When the Norma Jean II developed engine

trouble, the Pat Pam pulled close by. Mrs.

Whimsett asked if the parties aboard needed any

help, but they replied that they would be able to

make it to Michigan City (R. 26-27, 77). At this

time the Norma Jean II was about three miles off

the Indiana shore from Burns Ditch, which is ap-

proximately seven miles east of Gary, the south-

ernmost part of the Indiana shore of Lake

Michigan, and the boat’s position was about 10

or 12 miles from Michigan City, which lies north-

east of Gary. The owner of the Norma Jean IT

was able to fix this position by reference to a buoy

in the lake which he had passed about one half

hour before and to a water tank visible on the

shore (R. 77, 78-79, 115-116).

After the meeting with the Norma Jean I,

petitioner warned Mrs. Whimsett that she was get-

ting too close to Gary, Indiana, and then directed

the course of the boat due east. Having removed

his bathing trunks, petitioner threw Mrs. Whim-

sett to her knees and proposed that she engage in

an act of sodomy, but she refused (R. 27-28).

Petitioner had been drinking excessively, but Mrs.

Whimsett testified that she had had only two

drinks during the entire day (R. 63). When she

complied with petitioner’s command to mix more

drinks, he observed her pouring her drink into

the sink and blackened her eye with his fist

(R. 30). When petitioner saw her pour a second

drink on a cushion, he hit her in the other eye

(R. 31). Announcing that they were not going

anywhere until she did what he wanted, petitioner

took the wheel. Mrs. Whimsett hit him over fhe

head with a gin bottle which broke. Petitioner

countered with slashes of the broken bottle ~

against her face, neck, arm, and hips (R. 32).

When Mrs. Whimsett in desperation started to

pray, petitioner put a tourniquet on her arm,

and promised to take her to Michigan City if

she would agree to say that she had been in an

automobile accident (R. 35).

Mrs. Whimsett testified that at the time of the

assaults the boat was within the Indiana boundary

and that she could see the smokestacks at Michi-

gan City (R. 35-36, 64-65, 66). Two passengers

on the Norma Jean II testified that about a half

hour or an hour after repairing their engine,

after the meeting with the Pat Pam, they saw

é

with binoculars the Pat Pam or a boat of the

same lines between them and the Indiana shore,

and that this was the only boat in the vicinity

on that day (R. 186-187, 189).

Upon reaching Michigan City, Mrs. Whimsett

immediately went to a hospital where she was

treated for multiple cuts and bruises (R. 69,

82-83). Petitioner was arrested by Michigan

City police for public intoxication (R. 181, 184).

Evidence for the defense included testimony by

petitioner, who admitted two previous felony con-

victions (R. 99, 125). He categorically denied

the salient points of Mrs. Whimsett’s testimony

(R. 120-122). There was defense evidence that in

1946 Mrs. Whimsett’s condition in a Memphis psy-

chiatric hospital was diagnosed as that of a psy-

chopathie personality without psychosis (R.

156), and that her behavior on the boat was con-

sistent with that of a psychopathic personality

(R. 166-169).

ARGUMENT

Urging only an unsubstantial issue of law and

an issue of fact on which the two courts below

have agreed, the petition presents no basis for

review by this Court.

1. Petitioner contends (Pet. 13-17) that the

charge in count three of assault with intent to

commit the felony of sodomy should have been

laid under 18 U. S. ©. 13, the Assimilative Crimes

Act, which, he says, made applicable to the cireum-

————

8

stances of this case the sentencing provisions of

Sections 10-401 and 9-1821 of the Indiana Stat-

utes. Building upon this argument, petitioner

claims that he should have received an indetermi-

nate sentence of one to ten years rather than the

ten years and $3,000 fine adjudged by the trial

court on count three.’ But the argument has no

merit.

Petitioner was charged and sentenced under 18

U. 8. C. 113 (b), which condemns assault ‘‘with

intent to commit any felony, except murder or

rape * * *.”’ The offense admittedly occurred

within the special maritime jurisdiction of the

United States’ where, under the Assimilative

Crimes Act (supra, p. 3), a person who commits

an act ‘‘which, although not made punishable by

any enactment of Congress, would be punishable

if committed * * * within the jurisdiction of the

State, Territory, Possession, or District in which

such place is situated, by the laws thereof in force

at the time of such act * * *, shall be guilty of a

like offense and subject to like punishment.’’ Ac-

cordingly, while os el aitieimaanian pun-

ishes the offense of sodomy, the court below cor-

rectly looked to the law of Indiana, in which the

* Petitioner does not complain of his sentences under

counts one and two, except insofar as he urges that venue in

Indiana was not established as to any of the assaults. See

pp. 10-12, infra.

? Under 18 U.S. C. 7 (2), the “special maritime and terri-

torial jurisdiction of the United States” extends to a regis-

tered vessel such as the Pat Pam sailing on Lake Michigan.

9

events occurred, to determine whether the act

petitioner intended to commit when he assaulted

Mrs. Whimsett constituted a felony. And it is

undisputed that under Indiana law (6 10-4221,

supra, pp. 3-4) this act was condemned as sod-

omy, punishable by imprisonment for not less

than 2 nor more than 14 years. It follows, again

without dispute, that the act petitioner intended

is punishable under the Assimilative Crimes Act

and is a Federal ‘‘felony’’ within the meaning of

18 U.S. ©. 1 (1)* and 18 U.S. C. 113 (b).

Petitioner’s argument that he should have been

sentenced in accordance with Indiana law rather

than 18 U. S. C. 113 (b) overlooks the fact that

he was indicted and convicted, not for sodomy,

but for the offense under 18 U. S. C. 113 (b) of

“Assault with intent to commit any felony [here,

sodomy], except murder or rape * * *.” If the

indictment had been for sodomy, petitioner’s argu-

ment that the Assimilative Crimes Act alone is

applicable would be correct. However, 18 U.S. C.

113 (b) prescribes the offense and the punishment

in this case. The Assimilative Crimes Act is

applicable only in determining an element of the

offense—that the sodomy petitioner intended was

a felony. Perpetrated with this intent, the as-

sault violated 18 U.S. C. 113 (b), and the punish-

ment this section provides is not affected by the

Assimilative Crimes Act. Cf. Williams v. United

*“Any offense punishable by death or imprisonment for

a term exceeding one year isa felony.”

16

States, 327 U. 8. 711, 717-718; Dunaway v. United

States, 170 F. 2d 11, 12-13 (C. A. 10).

2. Equally without merit is petitioner’s conten-

tion that venue in Indiana was not proved (Pet.

17-20). Venue, like any other fact, may be

proved by circumstantial evidence and inferences,

and if under all the evidence it may be reasonably

inferred that the crimes were committed where

the venue is laid, that is sufficient. Cf. United

States v. Chiarelli, 192 F. 2d 528, 582 (C. A. 7),

certiorari denied, 342 U. 8S. 913; United States v.

Karavias, 170 F. 2d 968, 970 (C. A. 7); George v.

United States, 125 F. 2d 559, 563-564 (C. A.

D. C.). The proof in this case, convincing to the

two courts below, was plainly ample.

Under the Act of April 19, 1816, 3 Stat. 289,

e. 57, § 2, the northern boundary of Indiana as it

extended across the southern part of Lake Michi-

gan was described as an ‘“‘east and west line,

drawn through a point ten miles north of the

southern extreme of lake Michigan.’’ See Gov-

ernment Exhibit No. 26, being Chart No. 75,

1950, of Lake Michigan, made by the Army Lake

Survey, Corps of Engineers. At the time when

the Pat Pam met the Norma Jean II, they were

located about three miles off the shore from

Burns Ditch, approximately seven miles east of

Gary, Indiana, and 10 or 12 miles from Michigan

City, Indiana. This position, marked on the map

(Gov. Ex. 26) and well within the Indiana bound-

ary, was fixed by the owner of the Norma Jean II

ee

il

by reference to a buoy in the lake which he had

passed about a half Lour before and to a water

tank visible on the shore (R. 77, 78-79, 115-116).

After this meeting of the boats, petitioner told

Mrs. Whimsett she was getting too close to Gary,

and directed the course of the boat due east on a

direct line with Michigan City (R. 27). It was

shortly after this that the assaults occurred, and

Mrs. Whimsett testified that the Pat Pam was

then within the Indiana boundary and that she

could see the smokestacks a5 Michigan City (R.

35-36, 64-65, 66). Passengers on the Norma

Jean IT testified that shortly after their meeting

with the Pat Pam, they saw the Pat Pam or a

boat of the same lines between them and the In-

diana shore, and that this was the only boat in

the vicinity on that day (R. 186-187, 189).*

From the foregoing evidence it is submitted that

the trial court properly found (see R. 195) that

venue in the Northern District of Indiana had

been proved.

Since both courts below found that the evidence

was sufficient to prove venue in Indiana, there is

no occasion for this Court to weigh the evidence

* It is significant, as the court below pointed out (R. 220),

that although petitioner was acquainted with the shore line

between Chicago and Michigan City and heard the prosecu-

tion witnesses testify as to the location of the Pat Pam, he

made no denial that the Pat Pam was within the Indiana

boundary at the time of the assaults. On other issues,

petitioner’s testimony contradicated the evidence for the

prosecution.

12

in a proposed attempt by petitioner to draw con-

trary inferences that the crimes might have

occurred in Michigan or Illinois. Cf. Kann v.

United States, 323 U. S. 88, 98; United States v.

Jonuson, 319 U. 8. 503, 518; Delaney v. United

States, 263 U. 8. 586, 589-590.

CONCLUSION

For the reasons stated, it is respectfully sub-

mitted that the petition for a writ of certiorari

should be denied.

Rosert L. STERN,

Acting Solicitor General.

Warren OLney, Til,

Assistant Attorney General.

Rosert 8. Erpax1,

Rosert G. Maysack,

Attorneys.

Avaust 1953.

U. S. GOVERNMENT PRINTING OFFICE: 1953