with me in the conclusion that the writing described in the in.dictment comes within the terms of the statnte, and that it was nunmailable matter.
(S. D. Ohio.
This case was submittedseveml weeks ago. One of the questions involved presented much difficulty, which was increased by the conflict in the decisions thereon. After I had examined the matter with much care, I learned that the question was l'efore Judge on error. I have had the beneliL of the able briefs of counsel in that case, and being advised by Judge DltUM:.\lOND that he wot;ld shortly announce his decision, I thought it best to huld this case until that time. Having recei ved his opinion 1 a few days agu, I :un now rearly to dispose of this case. The defendar.t is charged with depositing in the Cincinnati post-office, for mailing aDd delivery, an obscene, lewd, and lascivious Writing, to-wit, a letter, addressed to one 1\lrs. Kate 'Valker, in said city, which said writing was of fL'1 illllecent character. The prosecution is brougllt under section 31:\93, Rev. St., as amended by the act of July 12, 1876, which provides that "eve.ry obscene, lewd, or lascivious book, pamphlet, picture, paper, writing, print, or other publication of an indecent character, * * * is herehy decl:tred to benon-mailalJle matter, * * * aud a person who sllall knowingly lleposit, * * * fJr mailing or deli very, anything declared by this section to be nunmailable matter," shall be pnnished, etc. 'festimollY was introduced by the government showing that the defendant wrote and deposited the letter as charged. It also appeared that the letter was inclosed in a sealed envelope. Upon the conclusiun of the government's testimony in chief, counsel for uefendant moved for the discharge of the accused, al1l1 Upu:l that motion finally submitted t;le case. Counsel urged that the motion should be granted: (1) Because the letter is not obscene, lewd, lascivious, or of an in'1ecent; character. Wl.ile it may be that all the words used in the letter, taken by themselves, would be entirely harmless, yet viewed as a whole the letter is grossly lascivious mId indecent. The wurds should not be passed upun separatelY, but in the connection and association in which the defendant has placed them. And withont going into the matter more fuUy, it is sufficient to say that I am satisfied this objection is not well taken. (2) Because the statute does not embrace a sealed letter. It is insisted that a comparison uf the present with cogrmte provisions of the statute, shows that congress did not intend to exercise any censorship over the contents oj sealed letters; that congress meant to protect tbe post-olfice employes awl others in whose hands ir.decent articles might come, rather than the person to whom the prohibited articles might be sent, and that to come within the statute the artide must be a "publication." ,Jndge DEADY, in U. S. v. L(>ftis, 12 FED. REP. 671, and U. S. Com'r HILL, in U. S. v. Williams, 3 FED. REP. 484, had held. snbstantiallv, that such was the correct construction of the statnte. Opposed to that viev,= was the decisiun of .ludge SA)WEL H. TREAT, of the southern district of Il:inois, in U. S. v. Gaylord, notes of his oral opinion been furnished me. 'fhns stood the decisions when this case was submitted. At first I was strongly inclined
s. v. Gaylord, antt,438.
UNITED STATES V. GAYLORD.
to the former view and to discharge the prisoner; bnt a fnlIer examination has satisfied me that such is not the true constructiun of the statute. Sume of the rea'lOns may be briefly stated. I think congress designed to prevent the use of the mail for carrying obscene matter, h whatever form it might be, and thus il.1CidentalIy to prutect the receiver of a letter; that it intended more than merely preventing such material going into thll mail to the view of those into whose hands the pacl:ages might pass. As was said by Judge BENEDICT in U. S. v. Foote, 13 Blatchf. 418, prosecution under the clause of section 3893, punishing the sending of articles to prevent conception, e1c.,-" The object of the statute is not to protect the morals of post-office employes, but to prevent the mails of the United States from being the effectual aid of persons engaged in a nefarious business, uy being used to distribute their obscene wares. To exclude from the all letters which, to the outward apuearallce, are harmless, would destroy its elTIcacy, for everything then wuuld take the form of a sealed letter. It is not the furm in which the matter is maile.I, but the character of the matter itself, whieh fixes the crilllinality of the act." The statute upun the suujeet of obscene matter, prior to the amendment of 1876, inc!ULled Ollly "books, pamphlets, piclures, papers, prints, or other pnblications," but by the amendment .. writin,, " was alilled to the enllmeration. That is a very comprehensive term. A written letter is certainly a writing. See ·Webst. Diet... Letter," .. '''riting.'' Congress Ilndouutedly had a purpose in making the amendment. Can it be that it was intended to apply only to the limited instances in which writings are sent throngh tile mails unsealed, or only to such writing3 as are not, in allY sense of the term, letters? I think l10t. It can hardly be questioned that a "book, pamphlet, picture, paper, or pr:nt" would still be unmailable, althuugh inclosed ill a sealed package. In U. S. v. FOGte, Sllpl'a, a sealed letter was held to be within the clause of section 3893, p 'ohibiting the mailing of articles to prevent conception, etc. In Re Jackson, 14 llIatchf. 245, JUdge BLATCHFORD held that section 3894, punishing t:1e use of tile mails for transmitting letters or concerning lotteries, embraced a sealed letter rehting thereto. Why should a .. writing" be taken out of the statute merely by sealing the envelope? 'ro give the cHect claimed to the phrase" or other publication," is to take aW11Y, by general wurds, that which is given in particular. That is opposed to a recogn!zed canon of statlltory construction. "It is a rule of right reason that general w!lrds may be qualified by particnlar clauses of a statute, but that, on the other hand, a thing which is given in particular, shall not be taken away uy general words." Sedgw. St. & Const. Law, 423. Bnt uayond this, grant that there must be a" pUblication" of th"l article, yet the sending of a letter tu the person to whom it is although in a sealed envelope, is a publication. .. Every communication of language, by one to another, is a publication." Townsh. Sland. & Lib. (ad Ed.) p. 146, § 95. And the sending of slanderous matter merely to the person sla:ldered, is a publication within the law of crimiflallibel. 3 Greenl. Ev. p. § 169. The security of pri\'ate corre;;pondence is in no way endangered uy this construction of the statute. No right of search is possessed by the postal authorities, except by obtaining the proper warrant. Ex parte Jar.kson, 96 U. S. 727. Bnt persolls outraged by being made the recipients of the ouscenity SOIlle miscreant has sent tIJem, should ue able to effectually punish anyone nsing the mails for such purpose. Ulldouutedly the defendant b entitled to the benefit of douht as to the proper construction of the statute. But courts are not established to seek out some loop-hole throngh which criminals may escape. If the language used by the legislature fairly includes the evil complained of, it should be so construed.
But I will not extend tltis furth:Jr. The learned and opinion of JUdge Dm.TlIDlOND (concurred in by Justice IIAHLAN) atlinnillg the judgment in U. S. v. Gaylord, supra, (see Chi. Leg. News, Aug. 11, 1bb0, p. fully sustains. the conclusion I have reached, The defendant be held to answer to the graml jur,l J. C. HAHPER,. U. S. Congress has power, ullller the constitution, to provide what shall be mailable matteI', and to prescribe punishment for mailillg prohibited matter. 1 It is not necessary that an indictment under section in respect to a book, should set forth in Jure verba the alleged obscene book, or the alleged obscene passages in it, if the indictment state that such book is so indeeei1t that it would be offellsi ve to the court, and improper to be placed on its records, and that, therefore, the same is not set forth in the indictment, and if the book is sutliciently identified to apprise the defendant what book is intended. 2 An indictment for introducing obscene pictures into a school need not particularly describe the pictures. 3 An indictment for depositing for mailing a notice of where an article for the prevention of conception may be obtained shoulo. set out the notice, unless it cannot be copied without great incon venience, or is so obscene as to be unfit to go upon the public records. 4 Where there is any reason for a failure to set out the notice, apparent upon the face of the papers or indictment, the court will consider it. 5 But where there has been a failure, without excuse, to set out the instrument in the indictment, it will not be admissi ble in evidence. 6 An indictment that sets out the obs<:ene publication according to its purport and effect, and not in hlEc'verba, is fatally defective. 7 The court of appeal of England, in the celebrated Bradlaltfllt and Besant Case, held that in an indictment at common law for publishing an obscene book, where there was no reason alleged in the indictment for omitting to set it out, that it is not sllfticient to describe the book by its title. s U. S. v. Bennett 9 passes upon a variety of questions of practice under section 3890, Rev. St. . . The test of obscenity is whether the tendency of the matter is to deprave and corrupt the morals of those into whose hands a publication of that sort may fal1. 1o The term" indecent" in section 3893, in connection with the offense defined in said section, taken with the history of the legislation npon the subjeet, means immodest, impure; and language which is coarse, or unbecoming, or even profane, is !Jot within the inhiLJition of the aet. l l The act of .July 12, 1b76, in respect to mailing matter giving notice as to the prevention of conception, etc., construed, and held not to extend ·to a sealed letter "Titten by the defendant to a person who had no existence, in answer to a decoy letter by a detective, and which on its face gives no information of the prohibited character. 12 Knowingly depositing in themail.by publisher, a newspaper containing a quack medical advertisement giving lI1formation how and where articles for the production of abortion and prevention of con<:eption could be obtained, held, to be a violation of section 3893.1 3 *** .
1 Ex parte t:. So 727; U. S. nett, 16 Blatch!. 3:.B. 2 U. S. v. Bennett. 16 Blatchf. 3:B. 3State \'". Pellninf!:ton.;") Lea, (Tenn.) 500. See, nlso, Com. v. Holmes, 17 )Iass. 330; Com. '". 2 Sergo & R. 91: People Y. Girardin. 1 1\Iich. 91; '\". Brown. l-\\-illi:l.ms, (\"t.) lit). 'U. S. Y. 16 Fe,\' Rep. '6'J.
S Era<1lan::h '1'". The Qneen, L. R 3 Q B. Div. e07. See. also, Knowles Y. State, 3 D'ly. 103; Statev. Han!"on, 23 Tex. 232; People Y. HollenLeek. 52 How. Pro G0"2.
tId. - 1Com. v. T .. rhox, 1
916 llI"tchr. 333. IOU. S. Y. Bennett, 16 Blatchf. 3::5.1. II U. S. '1'". Smith, 11 Fed. Rep. C63. 8.v. "'hlttier, 5 Dill. 35. Also see of Junge :MCCRARY npon this question in y, Kallmeyer, 16 Fed. Rep. 760. 13 U. S. v. Kelly, 3 Saw)'. t66.
IVES V. SARGENT.
(UirciJitOourt, D. Oonnecticut.
PATENTS FOR. INVENTIONS-REISSUE INVAUD.
July 23, 1883.)
Heissued letters patent dated October 18, 1881, granted to Hobart, 13. lves, ag assignee of Frank Davis, for an improvement in door-bolts, held invalid by reason of the laches of the plaintiff in not promptly applying to the patent-office to remedy the error claimed to have been made in the original applicatIOn for the patent.
SAME-LACHES, WHEN RENDER REISSUE
The right to have a mistake in a patent corrected when the mistake is plain and forthwith discernible, and improperly narrows the claim, mllst be speedily exercised, and sllch right will necessarily be abandoned and lost by unreasonable delay. It is Lot merely a question as to what information respecting their rights parties actually obtain, but as to what information they might have obtained had they used the means and opportunities at their command.
In Equity. Henry T. Blake, for plaintiff. John S. Beach, for defendant. SHIPMAN, J. This is a bill in equity to restrain the defendant from the alleged infringement of reissued letters patent, dated October18, 1881, to the plaintiff, as assignee of Frank Davis, for an improvement in door-boUs. The original patent was granted to Davis, as inventor, on April 9, 1878, and the application for a reissue was filed April 1, 1881. The specification of the reissue says that the invention consisted "in combining a cylindrical outer case with an inner case, constructed and recessed as hereinafter described, said cases combining to inclose the operating mechanism, and to form a fulclum and guide therefor; in combining with said cases a bolt, pitman, and crank; and in a pitman or connecting-rod performing the functions of both pitman and spring, as the above a.re hereinafter more fully set forth and claimed." The pitman, which performed the functions of both pitman and spring, was, in fact, the essence of the invention, and is claimed alone, and in combination with the bolt and crank to hold the bolt, in the third and fourth claims of the reissue as follows:
"(3) The combination of the bolt, c, provided with the lug, c. pitman, E, operating as a pitman and spring, and crank, D, to hold the bolt, snbstantially as set forth. (4) In a cylindrical door-bolt, the pitman, E, arranged and adapted to operate as a pitman and spring, substantially as set forth."
1n the original specification the' patentee was made to say that his invention consisted "chiefly in combining a cylindrical outer casing, constructed and recessed as hereinafter described, said casings combining to inclose the operating mechanism, and to form a fulcrum and guide therefor; and in combining with said' casings a bolt, pitman, and hub, so constructed and arranged as to operate in the same