3 F. 484 | E.D.N.Y | 1880
The defendant is charged with having violated the provisions of section 3893, U. S. Rev. St., as amended by section 1, act of July 12, 1876, (19 U. S. St. 90.) The portion of the statute to which the charge relates is as follows:
“Every obscene, lewd, or lascivious book, pamphlet, picture, paper, writing, print, or other publication of an indecent character, * * * and every letter upon the envelope of which, or postal card upon which, indecent, lewd, obscene * * * terms or language may be written or printed, are*485 hereby declared to be non-mailable matter. * * ® And any person who shall, knowingly, deposit, or cause to be deposited, for mailing or delivery, anything declared by this section to be non-mailable matter, * * ® shall be deemed guilty,” etc.
The particular act complained of is the depositing in the mail of the Greenpoini station, Brooklyn, on or about September 23, 1879, an obsceno and indecent letter, enclosed in an envelope, addressed to Mr. George Bowland, of Green-point.
Several questions are involved in this case: Is the letter referred to obsceñe or indecent ? Is it such an one as is embraced by the statute ? Was it deposited in the mail ? And is the evidence such as to justify the belief that the defendant violated the statute as alleged? The letter is evidently obscene and indecent. Obscene matter is that which tends to deprave and corrupt the morals of those whose minds are open to such influences. This is the test given by Chief Justice Cockburne in Regina v. Hicklin, (L. R. 3 Q. B. 360,) and adopted in later cases (U. S. v. Bennett, S. D. N. Y. 1879.) In the case of Heywood, (Mass.,) an obscene writing was defined as one offensive to decency, indelicate, impure, and an indecent one, as one unbecoming, immodest, unfit to be seen. Applying these tests, it is manifest that the letter in question is both obscene and indecent.
The proof of deposit in the mail consists of the postmark upon the envelope, and the testimony of the post-office officials. Both the English and American courts have held that postmarks afford presumptive proof of deposit in the mail, and, although some effort has been made to show that those postmarks might have been affixed otherwise than by the postal officials, there is sufficient evidence that the letter was deposited in the mail as charged.
The question next to bo considered is whether the letter referred to is shown by the evidence to be within the scope of the law. The offence charged is statutory, and the determination of this question depends upon the construction to be given to the statute upon which the charge is based. I
It is evident that no statute, prior to 1873,-declared an obscene private letter contraband. Such a letter is not a “book,” “pamphlet,” “picture,” or “print,” and is not covered by the words “other publication,” because they refer only to the classes specifically named.
In the case of Woodhull, (S. District N. Y., June, 1873,) Judge Blatchford held that as the word “newspaper” was not mentioned in the act of 1872, it was not included within the meaning of the words “other publications;” that the statute being penal, must be strictly construed, and it meant that, with other publications of the same character, books, pamphlets, and prints were included. In the act of 1876 the language is “obscene book, paper, writing, print, or other publication,” which means, according to the rule of construction laid down in the Woodhull Case, that among the publications prohibited were obscene books, writings, and prints. It would seem, therefore, that congress intended the statute to embrace only such writings as are “publications” within the meaning of the law.
A “publication” is defined in the dictionaries as a book or writing published, especially one offered for sale or to public notice; and to publish is defined to issue, to make known what before was private, to put into circulation. Writings are either printed matter or manuscript. The idea of publicity, of circulation, of intended distribution, seems to be in
This section does not punish the preparation of an obscene paper or writing, but the publishing it after it is prepared; nor does it forbid the possession of the same, but possession with intent to publish; thus showing clearly that congress did not intend that the preparation of a paper or writing should be regarded as the publication of it. The next section provides that “no obscene book, pamphlet, picture, paper, print, or other publication,” etc., shall be mailable, and is merely a declaration that the mails shall not be used for the accomplishment of the purposes prohibited in section 1; section 3 forbids the importation of the articles and things previously mentioned; section 4 punishes government officers who abet the violation of the act; and section 5 authorizes a search for and seizure of the things named, by United States marshals, that they may be condemned.
The statute was intended to be complete in its scope, and to prevent — First, the sale and circulation; second, tho distribution by mall; third, the importation of the literature and articles referred to; suad, fourth, the seizure and condemnation of the same; and, in order to determine what things are embraced by the act, its several provisions must be construed together.
It will be noticed that “writing” appears only in section 1,
Section 1785, Rev. St., provides that whoever, being “an officer, agent, or employe of the government of the United States, shall knowingly aid or abet any person engaged in any violation of any of the provisions of law prohibiting importing, advertí sing, dealing in, or exhibiting or sending or receiving by mail obscene or indecent publications, * * * shall he deemed guilty,” etc. The language of this section shows that the provisions of law prohibiting sending or receiving by mail written or printed matter relates to publications. The words “paper” and “writing” appear in each of the above sections relating to the dealing in and circulating, the mailing, the importing, and the seizing and destroying of obscene matter; and those sections, being intimately related and contributory to one design, it must be assumed that all refer to the same class of papers and writings, and to none other. As 'private letters are evidently not among the papers or writings to which some of those sections relate, it follows that congress did not intend to embrace them within any of the provisions referred to. The term “publication,” in the Revision, must also be presumed to have the same meaning as in the original act, wherein it expresses more than mere preparation, and possesses the added characteristic of proposed circulation and distribution. The latter part of the statute, relating to the taking of these contraband articles from the mails, also carries out this idea: it punishes not the more taking, but the taking “for the purpose of circulating or disposing of” them. If it be urged that mailing a letter to another is a publication of it, the reply is that its mailable or non-mailable character must he determined prior to its admission to the mails, and before such a publication can occur.
There appears, therefore, little room for doubt, in view of the apparent intention of congress as expressed in the series of legislation referred to, that the scope of the statute does
The reference to letters shows that congress had them in mind, and, by designating a certain class of them as non-mailable, there seems to have been an intention to confine the prohibition to that class, namely, those wherein the indecent matter is exposed to the inspection of others than the person directly addressed — a distinction in accordance with the spirit of the statute before suggested. The statute is a penal one, and must be strictly construed, and cannot be
There seems to be no doubt that such a letter is not among the class of letters which congress has declared non-mailable, and, if this view of the law is correct, the deposit of it in the mail was not a violation of the statute. If there is a fair doubt whether the act charged is embraced within the prohibition of the statute, the doubt is to be resolved in favor of the defendant. United States v. Morris, 14 Pet. 464; United States v. Wiltberger, 5 Wheat. 76; United States v. Whittier, 18 Alb. L. J. 110.
This conclusion renders it unnecessary for me to review the evidence0bearing upon the question-by whom the letter referred to was deposited in the'mail, or to express an opinion thereon.
The case was not given to the grand jury.