The defendant is indicted under the St. of 1862, c. 168, § 1, whiсh provides that “ whoever imports, prints, publishes, sells, or distributes аny book, pamphlet, ballad, printed paper, or оther thing containing obscene, indecent or impure language, or any obscene, indecent or impure prints, pictures, figures, or descriptions, manifestly tending to the corruptiоn of the morals of youth; or introduces into any family, schoоl or place of education; or buys, procures, receives, or has in his possession any such book, pamphlet, ballad, printed paper, or other thing, either for thе purpose of sale, exhibition, loan or circulation, or with intent to introduce the same into any family, school
It is clear that this indictment is founded on the first clause of the statute. This clаuse prohibits the importation, printing, publishing, selling, or distributing “ any book, pamphlet, ballad, printed paper, or other thing,” containing obscene, indecent or impure language, or containing any obscene, indecent or impure prints, pictures, figures or descriptions, manifestly tending to the corruption of the morals of youth. The second and fourth sections, рroviding for issuing search-warrants for “ any obscene, indecent or impure books, pamphlets, ballads, printed paрers or other things,” tend strongly to show that such is the true constructiоn of the first section. An indictment under this clause should aver that the defendant imported, printed, published, sold, or distributed a book, pamphlet, ballad, printed paper or other thing, describing it, containing obscene or indecent language, or obscene or indecent prints, pictures, figures or desсriptions, describing them, or giving an excuse for not particularly describing them. Commonwealth v. Holmes,
The indictment in this case аvers that the defendant “ unlawfully and scandalously did print and publish certain obscene pictures, figures, .and descriptions, to wit, pictures, figures, and descriptions of naked girls, manifestly tending to the corruption of the morals of youth.” It is not necessаry to decide whether this indictment can be held to be sufficient under the statute. If it can be, there was a fatal variance between the allegation and the proof. The court admitted evidence that the defendant took photographic pictures of two young girls naked down to the waist; and instructed the jury that, if they found such pictures to be obscene and indecent, and to have been delivered to thе girls, they should convict the defendant.
This was erroneous. The allegation that the defendant printed and published picturеs and figures of naked girls is not met by proof that he printed and рublished pictures and figures of girls, for the greater part clоthed. The government, having described the pictures, is bound by the description, and the defend
Exceptions sustained.