ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF WISCONSIN
White, McKenna, Holmes, Day, Hughes, Van Devanter, Lamar, Pitney; McReynolds took no part in the consideration and decision of the case.
MR. JUSTICE HOLMES delivered the opinion of the court.
This is an indictment for a conspiracy between the present defendant and one Laudenschleger that Laudenschleger should cause the defendant to be transported from Illinois to Wisconsin for the purpose of prostitution,
contrary to the act of June 25, 1910, c. 395; 36 Stat. 825. As the defendant is the woman, the District Court sustained a demurrer on the ground that although the offence could not be committed without her she was no party to it but only the victim. The single question is whether that ruling is right. We do not have to consider what would be necessary to constitute the substantive crime under the act of 1910, or what evidence would be required to convict a woman under an indictment like this; but only to decide whether it is impossible for the transported woman to be guilty of a crime in conspiring as alleged.
The words of the penal code of March 4, 1909, c. 321, § 37, 35 Stat. 1088, are "conspire to commit an offence against the United States" and the argument is that they mean an offence that all the conspirators should commit; and that the woman could not commit the offence alleged to be the object of the conspiracy. For although the statute of 1910 embraces matters to which she could be a party, if the words are taken literally, for instance, aiding in procuring any form of transportation for the purpose; the conspiracy alleged, as we have said, is a conspiracy that Laudenschleger should procure transportation and should cause the woman to be transported. Of course the words of the penal code could be narrowed as we have suggested, but in that case they would not be as broad as the mischief and we think it plain that they mean to adopt the common law as to conspiracy and that 'commit' means no more than bring about. For as was observed in Drew v. Thaw, 235 U.S. 432, a conspiracy to accomplish what an individual is free to do may be a crime, Reg v. Mears, 4 Cox. C.C. 423; 2 Den. C.C 79; Rey v. Howell, 4 F. & F. 160, and even more plainly a person may conspire for the commission of a crime by a third person. We will assume that there may be a degree of cooperation that would not amount to a crime, as where it was held that a purchase of spirituous liquor from an unlicensed vendor
was not a crime in the purchaser although it was in the seller. Commonwealth v. Willard, 22 Pick. 476. But a conspiracy with an officer or employe of the government or any other for an offence that only he could commit has been held for many years to fall within the conspiracy section, now § 37 of the penal code. United States v. Martin, 4 Cliff. 156, 164; United States v. Bayer, 4 Dillon, 407, 410; United States v. Stevens, 44 Fed. Rep. 132, 140; State v. Huegin, 110 Wisconsin, 189, 246. So a woman may conspire to procure an abortion upon herself when under the law she could not commit the substantive crime and therefore, it has been held, could not be an accomplice. The Queen v. Whitchurch, 24 Q.B.D. 420, 422; Solander v. The People, 2 Colorado, 48, 63; State v. Crofford, 133 Iowa, 478, 480.
So we think that it would be going too far to say that the defendant could not be guilty in this case. Suppose, for instance, that a professional prostitute, as well able to look out for herself as was the man, should suggest and carry out a journey within the act of 1910 in the hope of blackmailing the man, and should buy the railroad tickets, or should pay the fare from Jersey City to New York, she would be within the letter of the act of 1910 and we see no reason why the act should not be held to apply. We see equally little reason for not treating the preliminary agreement as a conspiracy that the law can reach, if we abandon the illusion that the woman always is the victim. The words of the statute punish the transportation of a woman for the purpose of prostitution even if she were the first to suggest the crime. -- The substantive offence might be committed without the woman's consent, for instance, if she were drugged or taken by force. Therefore the decisions that it is impossible to turn the concurrence necessary to effect certain crimes such as bigamy or duelling into a conspiracy to commit them do not apply.
MR. JUSTICE McREYNOLDS took no part in the consideration and ...