188 F. 450 | E.D. Ark. | 1911
The defendant, having been indicted for sending through the mails an obscene letter in violation of section 211 of the federal Penal Code (U. S. Comp. St. Supp. 1909, p. 1453), has demurred to the indictment upon the ground that the contents of the letter were not of the character prohibited by that section of the Penal Code. The letter was mailed in this district and addressed to a young lady in the state of Mississippi, and was as follows:
“Do it a little Club. I kiss and bug all tbe girls when they get inilia led. Need no light in hall. President. Professional hand-holder. Nights only.”
Assuming, without deciding, that the contents of the letter were not of that character which would make it nonmailable, in view of the construction of section 3893, R. S. (U. S. Comp. St. 1901, p. 2658), in Swearingen v. United States, 161 U. S. 446, 451, 16 Sup. Ct. 562, 40 L. Ed. 765, that would still not he conclusive of this case, as the Penal Code amends that statute very materially, by adding, after the words “every obscene, lewd, and lascivious,” the words “and every filthy” hook, pamphlet, picture, or letter.
While the court will not express any opinion as to whether the language used in the letter is clearly within the prohibition of the act of Congress as amended by section 211 of the Penal Code, it does not feel justified to say that the language is such that reasonable minds might not reach different conclusions as to its character. That being the case, it is the duty of the court to submit the question to a jury tó determine under proper instructions from the court whether the language is such as to make it within the prohibition of the act of Congress.
For these reasons the demurrer to the indictment is overruled.