Knowles v. United States
170 F. 409
8th Cir.
1909
Check Treatment
AMID.ON, District Judge

(аfter stating the facts as above). Upon this record, the only question before us is whether the article is obscene, lewd, or lascivious, within the meaning of the statute. If it was fairly open to the construction of falling within either of these classes, it was the plain duty of the court to submit the question of its character to thе jury. In all indictments under this statute there is a preliminary" question for the court to say whether the writing could by any reasonable judgment be held to come within the prohibition of the law. That *411is like the question of law in a casе of negligence as to whether there is any substantial evidence of negligence. It leaves a widе held for the sound, practical judgment of the jury to determine the true character of tlie writing and its ‍‌​​‌​‌‌​‌​‌‌‌​‌​‌​​‌‌​​‌​‌‌‌​​​‌‌‌​‌‌‌‌​‌‌​​​‌​​‍probable effect upon the mind of readers. Whenever reasonable minds might fairly reach different cоnclusions as to the character of the writing, it is the duty of the court to submit the question to the jury. Rosen v. United States, 161 U. S. 29, 16 Sup. Ct. 431, 180, 40 L. Ed. 606; United States v. Bennett, 16 Blatchf. 342, Fed. Cas. No. 14,571; United States v. Davis(C. C.) 38 Fed. 326; United States v. Harmon (D. C.) 45 Fed. 418. Looking at the article in question, we entertain no doubt that its character and effect were quеstions for the determination of the jury. It glorifies fornication, and places it under the blessing of God. It'designatеs the offspring of such intercourse as “love children,” and declares that the “army of genius has been lаrgely recruited from the ranks of illegitimates.” Whether such language as this when presented to the minds of ardent youths and maidens would have a tendency to arouse impure and lascivious thoughts and desires, we should sаy was at least a question of fact for the determination of a jury. The defendant urges that his article contains a sincere discussion of an important social question, and that he was actuated only by thе highest motives. He argued his case in person, and the impression which he made tended strongly to support this claim as to his motives; but such matters are immaterial in determining the issue here involved. His motive may have been never so pure; if the paper he mailed was obscene, he is guilty. There is no referencе in tlie statute to the design or intent that a man has in depositing nonmailable matter in the mail. ] le cannot viоlate the law, even though his purpose be to accomplish good.

Our attention is called to United States v. Moore (D. C.) 104 Fed. 78. We cannot approve of the interpretation -which that case puts upon ‍‌​​‌​‌‌​‌​‌‌‌​‌​‌​​‌‌​​‌​‌‌‌​​​‌‌‌​‌‌‌‌​‌‌​​​‌​​‍the opinion of the Supreme Court in Swearingen v. United States, 161 U. S. 448, 16 Sup. Ct. 562, 40 L. Ed. 765. The first matter dealt with by the Supreme Court in its opinion is tlie charge of duplicity. The statute usеs the terms “Obscene, lewd or lascivious,” in the disjunctive. Followdug the usual practice of criminal pleading, the indictment charged the writing to be “obscene, lewd and lascivious,” using the conjunctive form. The court hеld that this part of tlie statute defined but a single offense, and for that reason ruled that the indictment was not subjеct to the charge of duplicity. It is not true, however, as suggested in United States v. Moore (D. C.) 104 Fed. 78, that the opiniоn holds that a writing to come within the statute must be obscene, lewd, and lascivious. It is an elementary rule of criminal pleading that, where an offense may be committed by the use of either of several means, It is proper to charge ‍‌​​‌​‌‌​‌​‌‌‌​‌​‌​​‌‌​​‌​‌‌‌​​​‌‌‌​‌‌‌‌​‌‌​​​‌​​‍those means in the conjunctive form, and the government establishes its case if it proves the defendant guilty as to either of them. Commonwealth v. Curtis, 9 Allen (Mass.) 266; Stevens v. Commonwealth, 6 Metc. (Mаss.) 211; State v. Murphy, 17 R. I. 698, 24 Atl. 473, 16 L. R. A. 550.

The constitutional guaranties of religious freedom and freedom of the press have nоthing to do with the statute here involved, for two reasons: (1) Those guaranties cannot be made a shield fоr viola*412tion of criminal laws which are not designed to restrict religious worship or a free press, but ‍‌​​‌​‌‌​‌​‌‌‌​‌​‌​​‌‌​​‌​‌‌‌​​​‌‌‌​‌‌‌‌​‌‌​​​‌​​‍to protect society against practices that are clearly immoral and corrupting. Davis v. Beаson, 133 U. S. 333, 10 Sup. Ct. 299, 33 L. Ed. 637. (2) The postal service is an agency of the federal government, and that government may exсlude from its channels whatever in its judgment would be injurious to public morals. In re Rapier, 143 U. S. 110, 12 Sup. Ct. 374, 36 L. Ed. 93. From time immemorial it was аn offense at common law to utter obscene language in public ‍‌​​‌​‌‌​‌​‌‌‌​‌​‌​​‌‌​​‌​‌‌‌​​​‌‌‌​‌‌‌‌​‌‌​​​‌​​‍places, near a dwelling hоuse, or in the presence of women. State v. Appling, 25 Mo. 315, 69 Am. Dec. 469; Barker v. Commonwealth, 19 Pa. 412; Rex v. Wilkes, 4 Burr. 2527; Commonwealth v. Holmes, 17 Mass. 336; Willis v. Warren, 1 Hilt. (N. Y.) 590. The purpose underlying this common-law offense was, of course, to protect the innocent and pure against having obscenity intruded upоn their notice. The pervasiveness of our present mail system brings it directly within the reasoning of this common-lаw doctrine. If it may be used by the obscene, no mind or fireside is secure against' their corruption. The utterance of obscene language upon the street is a mild offense in comparison with its dissemination by an organized effort through such a secret and pervasive agency as the postal service. The word “obscene,” therefore, should be given in this statute fully as broad a significance as it had at commоn law. Ranguage, of course, may be coarse, profane, and opprobrious without coming within the scope of that term. Shields v. State, 89 Ga. 549, 16 S. E. 66; Swearingen v. United States, 161 U. S. 446, 16 Sup. Ct. 562, 40 L. Ed. 765. The true test 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'into whose hands it may fall, by arousing or implanting, ■in such minds obscene, lewd, or lascivious thoughts or desires.

The judgment must be affirmed.