Mr. Max Levy for plaintiffs in error.
Assistant Attorney General Harr and former Solicitor General Lehmann for defendant in error.
Mr. Justice McKenna delivered the opinion of the court:
Indictment under the act of June 25, 1910 [36 Stat. at L. 825, chap. 395, U. S. Comp. Stat. Supp. 1911, p. 1343]. It contains three counts charging defendants (we shall so call plaintiffs [227 U.S. 340, 341] in error and petitioners) with transporting and causing to be transported in interstate commerce certain named women, for the purpose of prostitution.
After a demurrer to the indictment was overruled and trial upon the plea of not guilty, defendants were convicted, and defendant Harris was sentenced to four years' imprisonment and defendant Green for one year, both to pay costs of prosecution, and judgment was entered accordingly. The judgment was affirmed by the circuit court of appeals. 114 C. C. A. 406, 194 Fed. 634.
The question of the constitutionality of the law was raised as in the cases which we have just decided, and nothing need be added to the opinion expressed in No. 381 [ 227 U.S. 308 , 57 L. ed. --, 33 Sup. Ct. Rep. 281], and we will pass to the errors assigned.
It is contended that there is a variance between the allegations and proof, in that the women transported were named in the indictment as Nellie Stover and Stella Larkins, and that the proof shows the latter's name was Estelle Bowles and the right name of Nellie Stover was Myrtie Watson. The point was not made either in the trial court or in the court of appeals. It comes, therefore, too late. But see, however, the opinion in No. 603 [ 227 U.S. 333 , 57 L. ed. --, 33 Sup. Ct. Rep. 288].
The next point made by defendants is that defendant Harris was entitled to an acquittal because of the insufficiency of the evidence to support a verdict of guilty. In passing on this contention the court of appeals reviewed the evidence and added its judgment of its sufficiency to that of the jury. We refer to the opinion of the court and concur in its comment and conclusion.