adjudges that the cause of action arose from the willful and malicious act or neglect of the defendant, aud that he ought to be confined in close jail. The plaintiff attached this money on mesne process, as United States marshal, and the defendant receipted it, and let it go back into the possession of the defendant in the attachment. This is what he was expected to do. There was no willful invasion of the rights of the plaintiff, or wanton destruction of his property. The defendant was then of good responsibility, and the plaintiff was willing to take his obligation, and give up the money. It was not expected that the money would be kept for the plaiutiff, to answer the judgment. Had that been the intention, he would probably have kept it himself. There was nothing willful or malicious in the conduct of the defendant, and there is no just ground to say that for it he ought to be eonfined in close jail. This accords with the opinion of the highest conrt of the state. Soule v. Austin, 35 Vt. 515. Motion 'in arrest overruled. Motion for certificate denied.
UNITED STATES V. BEBOUT
June Term, 1886.) MAIL-lN-
(District (Jo'lJ,rt. No D. Ohio.
OBSCENE PuBLICATIONS AND PRINTS-SENDING PAPER THROUGH DICTMENT-PROOF-REV. ST. U. S. § 8893.
To authorize a conviction under an indictment for sending obscene or in· decent matter through the mails, (Rev. St. § 3893,) it must be proven beyond a reasonable doubt-Firat, that the defendants or their agents deposited, or caused to be deposited, the paper containing the objectionable matter in the post-office for mailing; second, that the defendants knew that the paper contained the objectionable matter; and, third, that the publication was obBcene, lewd, lascivious, or indecent.!
SAME-WHAT IS OBSCENE.
The test which determines the obscenity or indecency of a publication is the tendency of the matter to deprave and corrupt the morals of those whose minds are open to such influences, and into whose hands such a publication may fall. S. SAME-REV. ST. U. S. § 3893, HAS TO DO WITH USE OF MAILS ONLY. The statute in question (Rev. St. § 3893) is directed against the use of the mails as an instrument for the circulation of obscene matter. It does not prohibit its publication, nor does it enter into the motives of the circulators, or the truth or falsity of the matter.
4. SAME-DEFENDANT-COMPETENT WITNESS·
. The defendant in such a prosecution is a competent witness" and his testi· timony is to be received on the same basis, and Under the same rules, as that of any other witness. Where two defendants are indicted and tried together, one may be acquitted and the other convicted. Each one can be held responsible only for hiS own acts and knowledl!:e, and not that of the other.
Ii. CRIMINAL LAw-JOINT DEFENDANTS-SEPARATE ACQUITTAL OR CONVICTION.
Indictment under Rev. St. § 3893.
See note at end of case;
UNITED STATES V.BEBOUT.
R. S., Shields, U. S. Atty., and R. H. Ooch'rane, for the United States. J. R. Tyler and E. S. Dodd, for defendants.
WELKER, J., (char,aing jury.) The defendants are indicted nnder, section 8898 of the Revised Statutes, which provides that "every obscene, lewd, or lascivious book, pamphlet, picture, paper, writing, print, or other publication, of an indecent character, · · · are hereby declared to be non-mailable matter, alid shall not be conveyed in the mails, nor delivered from any post.office, nor by any lettercarrier; and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, anything declal'ed by this section to be non-mailable, - · - shall be found guilty of a misdemeanor," and punished as therein stated. This indictment contains two connts: :rhe first one charges that the defendants did, on the seventeenth January, 1886, unlawfully and knowingly deposit, and cause to be deposited, for mailing and delivery, in the mail of the United States, in the post-office of the city of Toledo, a certain obscene, lewd, and laAcivions paper, called the Sunday Democrat, and directed to E. P. Willey; contain.ng therein the obBcene, lewd, and lascivious words, figures, and illustrations following; and setting out a copy of the article therein published. The second count charges a like violation of the statute, but calls the publication a certain publication of an indecent character. The defendants have entered a plea of not guilty,-a general denial of the allegations of the indictment. You are to start on this investigation of these charges with the humane presumptions of the law that the defendants are innocent of the charges alleged against them, and to require the government to establish, beyond a fair and reasonable doubt, everything necessary to constitute the offense, and to establish \ the guilt of the defendants. Three things must be established by'the government to authorize a conviction of the defendants: First, that the paper containing the objectionable matter was deposited by them, or that they caused it to be deposited, at Toledo, in the post-office, for mailing; second, that the defendants knew that the paper contained the matter described; and, third, that the publication was obscene, lewd, lascivious, or indecent. The failure to make out either one will entitle the defendants to an a8quittal. It must be shown to your satisfaction, and beyond a reasonable doubt, that the paper containing the matter set out in the indictment was deposited, directly or indirectly, by the defendants, in the post-· office at Toledo, for mailing or delivery, as charged. If it was deposited by their agent for that purpose, or some person acting directly under their orders, it would be the same as if dODe by themselves. If it was deposited by a person not their agent, and not acting nnder their orders or authority, then the defendants 'would not
be guilty of the offense. It will, then, be important for you to examine carefully the evidence on this point, and ascertain who did deposit the paper described in the indictment; under whose direction and authority he was acting when he did it; what relation the defendants sUlStained to the printing company who employed them; what was the scope of their duties respectively; who constituted the company; the relation the person who in fact did deposit the paper had to the corporation, or to the defendants; and all the circumstances disclosed in the evidence; and frqm all this determine. If you arfl satisfied by the proof, beyond such fair and reasonable doubt, that the defendants did so deposit the paper, or cause the same to be so deposited, then, to authorize a conviction of the defendants, it must be shown that they knew at the time that the paper contained the article or objectionable matter set out in the indictment. This. 4.nowledge is essential to constitute the offense. If they did not know that the matter described was in the paper, then the offense is not made out; and they are entitled to an acquittal. This knowledge may be shown by direct or circumstantial evidence. To determine this knowledge, you will also consider all the evidence and the circumstances shown in the proof. All reasonable doubts. on this point must be solved by you in favor of the defendants. , Next, was the publication obscene, lewd, lascivious, or indecent? Words used in the statute are to be understood in their usual and common signification. The dictionary defines these words as follows: Expressing or presenting to the mind or view something which delicacy, purity, and decency forbid to be expressed." "Lewd: Given to the unlawful indulgence of lust; eager for sexual indulgence." "Lascivious: Loose; wanton; lewd; lustful; tending to produce vaInptuous or lewd emotions." "Indecent: Not decent; unfit to be s.een or heard." There is a test which has often been applied and approved of by the courts; in this class of cases, to determine whether the publication is obscene or indecent within the meaning of the statute before referred to.· It is whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influences, and into· whose hands a publication of this sort may fall. Under these definitions, whether the matter set out in the indictmemt was obscene or indecent is a question of fact for you to determine. The defendants are entitled to the benefit of all reasonable doubts in this part of the case as in others; and all such doubts should be solved in their favor. The statute does not make the publication of obscene and indecent matter a.n offense. It consists in using the United States mails for its circulation. It is not designed or intended to prohibit the publication of obscene matter, but only to prohibit and prevent its circulation through the mails. Nor does the statute make a purpose or intent to deprave or demoralize the public, or injure individ· uals, an ingredient to constitute the offense. Nor does the truth or
UNIT:b:D, STATESV. BEBOUT.
falsity of the publication make any part of the offense; the only quiry being, was the publication obscene or indecent, and was it placed in the mails for circulation in violation of the statute? You will bear in mind that you are only trying these defendants for such use of the mail, and not for the publication of the matter charged to be obscene and indecent; nor for any attempt to black-mail any citizen or individual, or injury resulting to any person by reason of the publication. These defendants are indicted and tried together; but you may convict one, and acquit the other, or convict or acquit both, as the evidence 'may justify. The act of the one, or statement of either, separately made, does not bind the other. The knowledge of one is not the knowledge of the other. Each one can only be held responsible for his own acts and knowledge, and not that of the other. In all things in which they acted jointly, each would be responsible for such joint action. The defendants being competent, for that purpose, having offered themselves as witnesses, you will judge their testimony, and its reliability, as you do that of the' other witnesses;. and it is proper for you to consider the evidence offered by the government as to geIiBtal' character for truth and veracity, and give their testimony, 'as also that of all the witnesses, such weightand effectas you may'tllink the same is entitled to receive. Take the case, and make such findings as will satisfy you that you have rightfully decided the questions submitted to you, and return your verdict accordingly. The jury found a verdict of guilty as to A. J. Bebout, and notguilty as to A. S. Bebout. A motion for new trial was overruled, and A. J. Bebout sentenced to one year at hrd labor in the tiary of the state of Ohio, and payment of costs of prosecution.
NOTE. See, also, Bates v. U.S.· 10 Fed. Rep. 92, and note, 97. ' That the prohibition applies also to the mailing of sealed letters, see U. S. v. Gaylord, 17 Fed. Rep. 438; U. S. v. Hanover, Id. 444; U. S. v. Britton, Id. 731; U. S. v. Thomas, 27 Fed. Rep. 682, and note; U. S. v. Morris, 18 Fed Rep. 900, in which Justice DEADY overrules his contrary decision in U. S. v. Loftis, 12 Fed. Rep. 671. In U. S. v. Williams, 3 Fed. Rep. 484, it was held that the provision does not apply to sealed letters; and the same doctrine was last year repeated in U. S. v. Comerford, 26 Fed. Rep. 902. In India::la, the offen&e is punishable under the state law also. See Thomas v. State, 2 N. E. Rep. 808.
THE THOMAS RENTON
July 8, 1886.)
(Di8tlfut Court, S. D., New Yo-rk.
COLLISION-DAMAGES-PARTIALLoss-DuTY TO RAISlll SUNKEN VESSEL-DELAY IN RAISING.
Whetea vessel is sunk by collision, in shallow water, and can be easily raised and repaired at much less expense than she is worth, the owner can· not abandon her, and recover, as for a total loss, against the colliding vessel. He can recover only the cost of raising and repairing within a reasonable time, and cannot add the increased expense that arises through unreasonable delav.
In Admiralty. Howard A. Sperry and J. A; Hyland, for libelant. Butler, Stillman ct Hubbard and W. Mynder8e, for claimants. BooWN, J. The Ariel,a small yacht, was injured bya collision in the Kills, and sank within the line of the bulk-head. See 22 Fed. Rep. 739. On the next day this libel was filed to recover for a total loss. The referee On damages has reported the yacht to have been worth $500 when sunk. No efforts were made by the libelant to raise or repair her, though she sank near his place of residence, and could have been raised for asman sum. Two months afterwards, when the raising was more difficult, she was raised by the pilot commissioners for $65, and taken to Gowanus flats, where she has ever since lain abandoned. The referee finds that the yacht could have been repaired at the time when she was raised for $350, aDd has 0.1lowedtbat sum as damages. Both sides have excepted,-the libelant, because a total loss was not allowed; the claimant, for excessive damages. The referee further finds that had the boat been raised at once, or within a reasonable time after sbe was sunk, she could have been repaireq. for $lUO lesfj·than it would have taken to repair her at the time when she was raised. The evidence indicates, and the refereejinds, that the failure olthe libelant to raise and repair the boat was because he chose to avail himself of the opportunity to dispose of the boat by seeking to recover in this action for a total loss, 0.1she might have been easily raised and repaired. The supreme court in the case of 'l'he Baltimore, 8 Wall. 377, 3R6388, held explicitly that, under circumstances analogous to the present, where the vessel was sunk, not at sea, but in a river, and in comparatively shallow water, it was the duty of the libelant to make reasonable exertion to save the boat, and to prevent a total loss. If I were at liberty to disregard the rule there laid down, I should not feel disposed to do so, since the obligation there stated seems to me one of evident justice. The cases cited by the libelant (The Falcon, 19 Wall. 75; The Columbu8, 3 Wm. Rob. 161) have no reference to