United States ex rel. Mittler v. Curran

Second Circuit

United States ex rel. Mittler v. Curran

8 F.2d 355, 1925 U.S. App. LEXIS 3283

CourtCourt of Appeals for the Second Circuit

DecidedJune 8, 1925

DocketNo. 369

StatusPublished

Cited by2 cases

This text of 8 F.2d 355 (United States ex rel. Mittler v. Curran) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States ex rel. Mittler v. Curran, 8 F.2d 355, 1925 U.S. App. LEXIS 3283 (2d Cir. 1925).

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Opinion

HOUGH, Circuit Judge

(after stating the facts as above). Drastic as is the statute under which this deportation is ordered, we do not admit that it was meant to apply or does apply to persons so utterly separated from ¿1 countries but this, so completely a product of the United States, and so native in everything but the accident.of birth, as is this young woman. Tp prevent the hypocritical injustice involved in sending to Italy as to her home this product of American conditions, who knows considerably less about the land to which she is ordered than a reasonably intelligent American tripper does after one summer there, recourse might and should be had to Holy Trinity Church v. United States, 143 U. S. 457, 12 S. Ct. 511, 36 L. Ed. 226, and its doctrine of statutory construction.

We need not go so far, but do hold that the evidence was insufficient to warrant a holding that the woman was “practicing prostitution.” In that common or ordinary parlance which legislative draftsmen are presumed to use, the phrase means to pursue as a business or occupation the sale of one’s body for carnal intercourse. Cent. Diet. The proof is at best (or worst) of an isolated act, and there is no evidence at all of pursuing the habit as a vocation. Unehastity is not proof of prostitution; and a single instance, even of sale, may or may not be evidence of “practicing” prostitution. If by a street walker, it probably would be; but here the surrounding circumstances repel the pursuit of a business, or of “practicing,” which the statute requires. It is noticeable that the same statute under which relator was convicted makes a vagrant of a “common prostitute,” and she was not prosecuted under that section. That is a phrase applicable to one who “practices” prostitution. This woman could not reasonably have been convicted of being “common,” nor of “practicing.”

Order affirmed.

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HOUGH, Circuit Judge

(after stating the facts as above). Drastic as is the statute under which this deportation is ordered, we do not admit that it was meant to apply or does apply to persons so utterly separated from ¿1 countries but this, so completely a product of the United States, and so native in everything but the accident.of birth, as is this young woman. Tp prevent the hypocritical injustice involved in sending to Italy as to her home this product of American conditions, who knows considerably less about the land to which she is ordered than a reasonably intelligent American tripper does after one summer there, recourse might and should be had to Holy Trinity Church v. United States, 143 U. S. 457, 12 S. Ct. 511, 36 L. Ed. 226, and its doctrine of statutory construction.

We need not go so far, but do hold that the evidence was insufficient to warrant a holding that the woman was “practicing prostitution.” In that common or ordinary parlance which legislative draftsmen are presumed to use, the phrase means to pursue as a business or occupation the sale of one’s body for carnal intercourse. Cent. Diet. The proof is at best (or worst) of an isolated act, and there is no evidence at all of pursuing the habit as a vocation. Unehastity is not proof of prostitution; and a single instance, even of sale, may or may not be evidence of “practicing” prostitution. If by a street walker, it probably would be; but here the surrounding circumstances repel the pursuit of a business, or of “practicing,” which the statute requires. It is noticeable that the same statute under which relator was convicted makes a vagrant of a “common prostitute,” and she was not prosecuted under that section. That is a phrase applicable to one who “practices” prostitution. This woman could not reasonably have been convicted of being “common,” nor of “practicing.”

Order affirmed.

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Bluebook (online)

8 F.2d 355, 1925 U.S. App. LEXIS 3283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-mittler-v-curran-ca2-1925.

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