38 F. 827 | D. Kan. | 1889
The defendant, Moses Harman, is charged with having unlawfully and knowingly deposited in the United States posh-office at Valley Falls, Kan., for mailing and delivery to different parties, a certain obscene article of an indecent character contained and printed in a publication entitled “Lucifer.” There are a great number of counts in the indictment, and it is unnecessarily long. The articles complained of are four in number, and were mailed at different times. The defendant demurs to the indictment on the ground that it does not charge an offense under the law; that the statute does not reach a case of mailing a paper containing an obscene and indecent article, but that the publication, paper, or periodical itself must be of an obscene character as a whole. Section 3898 of the Revised Statute declares as follows:
“Every obscene, lewd, or lascivious book, pamphlet, picture, paper, writing, print, or other publication of an indecent character * * :i: are hereby declared to be non-mailable matter, and shall not be conveyed in the mails nor delivered from any post-office, nor by any letter-carrier.”
Counsel for defendant, in support of the dem„urrer, have made an ingenious argument, and one showing much research in the field of general literature. They insist that if an article in a paper or other publication comes within the meaning of the law, then by the same reasoning a chapter or sentence of a book which is obscene would bring under the ban of the law the whole book, and would exclude it from the mails. As a result, not only medical works, but the writings of such authors as' Swift, Pope, Fielding, Shakespeare, and many others, and even the Bible itself, would be denied the privileges of the United States mails. Undoubtedly there are parts of the writings of said authors, and many others equally noted, which are open t<? the charge of obscenity and lewdness,-but any one objecting to such works-being carried through-the mails would be laughed at for his prudery. I have but little patience with those self-constituted guardians and censors of the public morals who are always on the alert to find something to be shocked at; who explore the wide domain of art, science, and literature to find something immodest, and who attribute impurity where none is intended. The law is founded on reason and common sense, and the statute was enacted to prevent the mails from being used to disseminate the vile literature and indecent pictures with which the country was flooded; those things calculated and intended to create and cater to a morbid appetite for obscenity and lewdness, and to corrupt the morals of the people, and especially the young, who are more susceptible to such influences. U. S. v. Bebout, 28 Fed. Rep. 522; U. S. v. Chesman, 19 Fed. Rep. 497. No one in this day can deny the right to the widest latitude of discussion of all subjects of interest to the people. Any thought which may contain the germ of an idea calculated to benefit any human being, when couched in decent language, ought to be disseminated among the people.
It is apparent that the construction of the statute contended for by defendant would practically defeat the object and purpose of the law. It would be a very dull man who could not conform his publication or written communication to the exigencies of the situation. A further objection is made to the indictment, that there is a joinder of a multitude of counts for the same offense. I have serious doubts whether the publisher of an obscene paper can be convicted of a separate offense for every person to whom he shall mail that particular issue of his paper. At the minimum imprisonment, even under a fine, the ordinary human life might not serve to fill out the period. Rut it seems to me that the most defendant can claim on that ground is that the government be required to elect on which counts it will prosecute. The motion to quash is overruled.
Since writing the foregoing opinion my attention has been called to a case recently before Judge Thayer, of the Eastern district of Missouri,— U. S. v. Clarke, ante, 500. From what appears in the published extract of the ease, it seems Judge Thayer takes a similar view of the law, on the chief points, as herein expressed.