United States v. Slenker

32 F. 691 | W.D. Va. | 1887

Paul, J.

The jury in this case having found a verdict of guilty, the defendant moves the court in arrest of judgment, on the ground that it is not alleged in either count of the indictment that the defendant knew the writings, papers, publications, etc., charged to have been by her deposited in the mail, were of an obscene, lewd, and lascivious character. She is charged in the indictment with unlawfully and knowingly depositing, and causing to be deposited, in the mail, for mailing and delivery, certain obscene, lewd, and lascivious writings, papers, etc., but there is no allegation that she knew the papers, writings, etc., to be lewd, etc.

The scienter, when necessary to be alleged in an indictment, is matter of substance, and not of form, and its omission is not cured by section 1025 of the Revised Statutes. The district attorney insists that as the indictment is in the language of the statute, it is sufficient. This is the general rule as to sufficiency in describing the offense; but where something more is necessary, such as the allegation of guilty knowledge, then the language of the statute is not always sufficient. This was the case in U. S. v. Carll, 105 U. S. 611, where the indictment alleged, in the words of the statute, that the defendant feloniously, and with intent to defraud, did pass, utter, and publish a falsely made, forged, counterfeited, and altered obligation of the United States, but did not allege that the defendant knew it to be false, forged, counterfeited, and altered, it was held insufficient even after verdict. The supreme court saying:

“Jn ah indictment upon a statute it is not sufficient to set forth the offense in the words of the statute, unless the words of themselves fully, directly,- and expressly, without any uncertainty or ambiguity,, set forth all elements necessary to constitute the offense to be punished.”

To the same effect is the decision of U. S. v. Cruikshank, 92 U. S. 542. The same objection made to this indictment was made and sustained in the case of Com. v. Boynton, 12 Cush. 499. These authorities are as high as any that can be invoked in the decision of this question. A very clear rule as to the sufficiency of an indictment is laid down in Com. v. Young, 15 Grat. 664. It is this:

“If the indictment may be true, and still the accused may not be guilty of the offense described in the statute, the indictment is insufficient. ”

Let us apply this rule to the ease before us. . The defendant is charged with knowingly depositing, and causing to be deposited, in the mail, for mailing and delivery, certain obscene papers, etc. She may knowingly bare done Ibis; she may knowingly bare caused it to be done, and yet be entirely ignorant of the obscene character of the writings, etc., so deposited, and consequently not guilty of the offense described in the statute. “Knowingly,” in the indictment, must be limited to the act of depositing, for mailing and delivery, the obscene matter in the mail, and cannot be extended to include a guilty knowledge of tlio writings, papers, etc. Suppose the indictment charged that the defendant knowingly deposited, and caused to be deposited, in the mail, for mailing and delivery, a certain dangerous and explosive substance known as dynamite or gunpowder; would this be a sufficient allegation that she knew the material to be of a dangerous and explosive character? The court thinks not. The knowledge alleged in the indictment would be confined to the act of mailing. The adjectives “dangerous and explosive” would intervene between the fact of which she is alleged to have knowledge, and separate it from the subject of which she must be charged with having guilty knowledge, and are descriptive of that subject. As stated in the ease cited from 12 Cush, supra, the guilty knowledge charged was confined to tlio act of selling, and did not extend to the character of the meat sold.

The case chiefly relied upon by counsel for the government, to sustain this indictment, is U. S. v. Bennett, 12 Myer, Fed. Dec. 700. An examination of that caso will show that the point there raised against the indictment was somewhat different from the one raised here. But granting them to be the same, I cannot think tlio Case of Bennett of more binding authority than the cases which I have cited.

The court is of the opinion that the indictment does not set forth the offense with clearness and all necessary certainty, so as to apprise the accused of the crime with which she stands charged, and every ingredient of which the offense is composed is not accurately and clearly alleged. It is defective because it does not allege that the defendant knew that the writings, papers, etc., which she is charged with having deposited in the mail, for mailing and delivery, were of an obscene, lewd, and lascivious character. This conclusion is clearly sustained by principle and precedent; and the motion in arrest of judgment must bo sustained.

Judgment stayed, and defendant discharged.