113 F. 197 | 7th Cir. | 1902
after making the foregoing statement, delivered the opinion of the court.
The contention on behalf of plaintiffs in error is that the indict-ment does not aver that the writing therein set forth gave the prohibited information directly or indirectly; that it contains no averment that obscene, lewd, and lascivious photographic pictures or views were in fact at Nos. n to 23 Jefferson street, in the city of Chicago, or were in the possession or under the control of the Mills Novelty Company. Counsel contend that an indictment drawn under this section for mailing prohibited matter, or for mailing a writing giving information where such matter may he obtained, is subject to the rule of pleading applicable to indictments for slander, libel, forgery, etc.; that the case at bar is strictly analogous to an indictment for criminal libel; that therefore, in order to make
This contention cannot be sustained. The primary object of this federal enactment (section 3893, Rev. St. U. S.) is to protect the mails from corrupt communications. The incidental purpose of the law is to protect the public morals. The law has been construed by the supreme court. It is not necessary, in an indictment under this section, that all the words constituting the information should be pleaded with the particularity used in cases for libel and forgery. It is sufficient that the character of the information be described, leaving further disclosures to the introduction of evidence. The offense here denounced is the giving of information by mail where obscene matter may be obtained. Any communication by mail which does this is actionable. The gist of the offense is the giving of the information by mail. It is not necessary to aver ownership or possession of the obscene matter. Neither is it necessary to aver that the informal ion was given to one who inquired for or desired the same. One very common purpose of those who violate ¡his statute is the corruption of the young and the innocent. It is not necessary that the writing complained of should in terms describe obscene matter. The writing may be innocent and harmless on its face. Yet if it in fact give information where obscene matter may be obtained, and the explanatory averment so states, it cannot save the plaintiffs in error harmless because the obscene matter in question is described by the indefinite term of “views.”
On the exact question arising here the cases of U. S. v. Grimm (C. C.) 43 Fed. 558, Id. (D. C.) 50 Fed. 528, and Grimm v. U. S., 156 U. S. 604, 15 Sup. Ct. 470, 39 L. Ed. 550, are in point. These cases have been much relied upon by counsel on both sides. The indictment here is sufficient under the authority of either of the Grimm Cases. In the first Grimm Case, the main objection to the indictment,- and the one on which it was held insufficient for uncertainty, was that it did not contain any averment, either in the writing itself or by way of explanation, as to the place where the objectionable matter could be obtained. The indictment failed to aver that the writing complained of conveyed the information denounced by the statute. The indictment here is specific on this point. It avers that the writing complained of did contain information where such denounced photographs could be obtained, viz.: “Information that the said pictures might be obtained at Nos. 11 to 23 South Jefferson street, in said city of Chicago.” In the second Grimm Case, opinion by Mr. Justice Brewer, it is said at page 608, 156 U. S., page 471, 15 Sup. Ct., and page 551, 39 L. Ed.:
“It is insisted that the possession of obscene, lewd, or lascivious pictures constitutes no offense under the statute. That is undoubtedly true, and no conviction was sought for the mere possession of such pictures. The gravamen of the complaint is that the defendant wrongfully used the mails for transmitting information to others of the place where such pictures could be obtained, and the allegation of possession is merely the statement of a*202 fact tending to interpret the letter which he wrote and placed in the post office. It is said that the letter is not in itself obscene, lewd, or lascivious. This also may be conceded. But, however innocent on its face it may appear, if it conveyed, and was intended to convey, information in respect to the place or person where, or of whom, such objectionable matters could be obtained, it is within the statute. * * * On the contrary, it Is sufficient to allege its character and leave further disclosures to the introduction of evidence. It may well be that the sender of such a letter has no single picture or other obscene publication or print in his mind, but, simply knowing where matter of an obscene character can be obtained, uses tbe mails to give information to others. It is unnecessary that unlawful intent as to any particular picture be charged or proved. It is enough that in a certain place there could be obtained pictures of that character, either already made and for sale or distribution, or from some one willing to make them, and that the defendant, aware of this, used the mails to convey to others the like knowledge.”
Measured by this standard the indictment is sufficient. It avers, after setting out the circular in hsec verba:
“Which said circular then and there was a circular which gave information, as they, the said Anthony L. De Gignac and Herbert S. Mills, then and there well knew, where and of whom might be obtained certain obscene, lewd, and lascivious photographic pictures, in the said circular called ‘Views’; that is to say, information that the said pictures might be obtained of the Mills Novelty Company, at Nos. 11 to 23 South Jefferson street, in the said city of Chicago, — against the peace and dignity of the said United States, and contrary to the form of the statute of the same in such ease made and provided.”
It very properly left further disclosures to the introduction of evidence.
The judgment of the district court is affirmed.