248 F. 6 | 1st Cir. | 1918
This is a writ of error from judgments of the United States District Court for Massachusetts on two indictments, which were tried together and later consolidated for the purposes of this writ.
The first indictment was brought under section 211 of the Penal Code, and charged that the defendant “on or before the twenty-fifth day of November, in the year one thousand nine hundred and fifteen, at Springfield, did unlawfully and knowingly deposit and caused to be deposited in the mails of the United States of America for mailing and delivery certain nonmailable matter; that is to say, a certain obscene, lewd, lascivious, and filthy letter, inclosed in a certain envelope, then and there addressed and directed as follows” — setting out the name and residence of the addressee, a sufficient portion of the letter to identify it, and stating that the remainder was too obscene, lewd, lascivious, and filthy to spread upon the record.
The second indictment was brought under section 212 of the Penal Code, and contained eight counts; hut only the second, fourth, fifth, sixth, seventh and eighth were submitted to the jury. In the second count it was alleged that the defendant “on or about the fifth day of November, in the year nineteen hundred and fifteen, at said Springfield, did unlawfully and knowingly deposit and cause to be deposited in the mails of the United States of America for mailing and delivery a certain postal card, upon which, to wit, upon the. back thereof, delineations, epithets, terms, and language of a libelous, scurrilous and defamatory character, and calculated by the terms and manner and style of display, and obviously intended to reflect injuriously upon the character and conduct of another, to wit, one Daisie B., were then and there written and apparent, of the tenor following” — setting out the communication thereon and the name and address of the party to whom it was sent, that it was nonmailable matter, and that the defendant well knew that the delineations, epithets, terms, and language were upon the postal card. The remaining counts of the indictment were of the same tenor, except that they related to the sending of other postal cards bearing different communications, but addressed to the same person.
Upon each indictment the defendant was found guilty, and was sentenced to imprisonment “in the house of correction at Greenfield, in the district of Massachusetts, for a term of four months, * * * said sentences to take effect concurrently.”
Various errors are assigned. In the first six assignments the defendant complains that the court erred in admitting in evidence the various postal cards relating to each .of the six counts of the second indictment that were submitted to the jury. The seventh assignment relates to the admission of the letter which forms the subject-matter of the first indictment. The ground of exception, as disclosed by the record, was that the communications upon the postal cards did not constitute nonmailable matter within the provisions of section 212, and that the letter did not contain nonmailable matter within the provisions of section 211.
The only question properly raised by these assignments of error being whether the letter and postal cards constituted nonmailable matter within the provisions 'of the statutes above referred to, we will now proceed to consider it.
“Every obscene, lewd, or lascivious, and every filthy, * * * letter, writing, * * * (or other publication of an indecent character, * * * -is hereby declared to be nonmailable matter and shall not be conveyed in the mails or delivery from any post office or by any letter carrier. Whoever shall Knowingly deposit, or cause to be deposited, for mailing or delivery, anythng declared by this section to be nonmailable, * * * shall be fined not more than five thousand dollars, or imprisoned not more than five years, or both.” Comp. St. 1916, § 10381.
The courts, in construing this statute, have held that the rule by which to “determine whether a writing comes within the meaning of the statute is whether its language -has a tendency to deprave and corrupt the morals of those whose minds are open to such influences, and
“Sec. 212. * * * Any postal card upon which any delineations, epithets, terms, or language of an indecent, lewd, lascivious, obscene, libelous, scurrilous, defamatory, or threatening character, or calculated by the terms or manner or stylo of display and obviously intended to reflect injuriously upon the character or conduct of another, may be written or printed or otherwise impressed or apparent, are hereby declared nonmailable matter, and shall not be conveyed in the mails nor delivered from any post office nor by any letter carrier. ' * * * Whoever shall knowingly deposit or cause to be deposited, for mailing or delivery, anything declared by this section to be nonmailable matter, * * shall be fined not more than live thousand dollars, or imprisoned not more than five years, or both.” Comp. St. 1916, § 10382.
We have carefully examined the communications upon the postal cards and the pictures in connection therewith, and contained thereon, and are of the opinion that they were calculated by the terms and manner of display and obviously intended to reflect injuriously upon the character and conduct of the person to whom they were addressed, and that some of them also contain language of a scurrilous and defamatory character within the meaning of the provisions of the act in question.
The eighth assignment of error has not been argued. No reason has been suggested, and we see none, showing that the court erred or the defendant was harmed in not permitting counsel to pursue the inquiries set forth in this assignment.
The judgment of the District Court is affirmed.