45 F. 476 | E.D. Wis. | 1891
The defendant demurs to an indictment preferred.under Rev. St. § 3893, as amended by 25 St. 496. The indictment contains
! t was claimed at the argument, and conceded by the attorney for the government, that the defendant is entitled to take the opinion of .the court by demurrer whether the matter set forth was or was not obscene. That would seem to be the rule in England, but is one not followed in this country. Crdinarily it is a question for the determination of a jury. But it is within the province of the court to construe the objectionable document so far as necessary to decide whether a verdict establishing its obscenity would ho set aside as against evidence and reason. U. S. v. Bennett, 16 Blatchf. 338; U. S. v. Clarke, 38 Fed. Rep. 500. The test was laid down by Chief Justice Cockburn in Reg. v. Hicklin, L. R. 3 Q. B. 360: Is the tendency of the matter charged as obscene to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall? That tost is applied to the statute under which this indictment is framed. U. S. v. Bennett, supra; U. S. v. Wightman, 29 Fed. Rep. 636; U. S. v. Beboat, 28 Fed. Rep. 522. The purpose of the statute was to purge the mails. Congress, possessing the power of exclusion, declines to permit the mail to become a vehicle for the transmission and circulation of mental filth. To that end the statute should receive a liberal interpretation, consistently with recognized rules of construction. The words “obscene,” “lewd,” and “lascivious,” as employed in the statute, are not used interchangeably. “Gbscene” has a broader signification than “lascivious,” comprehending whatever is impure, unclean, indecent, foul, filthy, or disgusting. It is said of this pamphlet that it is a medical treatises without illustration, and, with a possible exception, expressed in clean and wholesome language. In an able argument the counsel for the defendant asserted that it was the highest duty to instruct the youth in the anatomy of the human body, and the law of its nature, warning them of the grievous results flowing from infraction of such law; and that a work upon such a subject, devoid of filthy language, cannot properly be classed as obscene. Whether act or language is obscene depends upon
It is claimed for these publications that they were addressed by a physician to a patient, and therefore privileged. I cannot doubt that proper and necessary communication between physician and patient touching any disease may propei'ly be deposited in the mail. The statute is not to receive a strained construction. It is aimed at the obscene. It was not enacted in the interest of the prude. But can these publications be properly so classified? There is nothing upon the face of this indictment connecting the defendant -with “Gun Wa,” the “ Chinese graduate of botany,” — whatever that may mean. The court cannot take judicial cognizance of the fact — if it be a fact — that “Gun Wa,” is the Chinese synonym for “Smith.” Nothing appears to indicate that the defendant was a physician, or that the person to whom these publications were addressed was his patient. So far as the record discloses, he was a mere volunteer, sending this unsavory literature through the mails. If, as was assumed, the defendant was in fact “Gun Wa,” using that designation as a trap in which to catch the ignorant and the credulous, he was then a mere charlatan, circulating promiscuously these publications upon subjects that are foul, unless purged of obscenity by conditions rendering their use proper. It cannot be said that under any circumstances a verdict declaring these documents obscene would be contrary to reason and common sense. To the contrary, it must be said that they are manifestly foul unless the occasion and condition of their employment should justify their use; and that must be determined by a jury. The demurrer is overruled.