l;1ad aright wait until the termination of tlilit suit,-to wait until he could know whether or: not her claim would prevail over Brower's. I cannot'assent to this view of the matter. There isnotbing in the authorities on the subject, sO far as I have seen, that would indicate that the assignee. hlld a right to wait until it was determined in another case whether the facts shown were fraudulent or not,' and that the statutes would only. commence to run after such determination. It appears, moreover, that an amendment was filed by BrQWer while that case was being argued, denying Mrs. Cothran's right to recover the stock, because her title or interest, if she had! any, was obtained through a scheme to defraud H.. )). Cothran's creditors. And one of the special issues made thereafter in the case, and which was Wt to the jury as a question to be answered by them, was whether it was the design of H. D. Cothran, in the transaction with Fouche and Mrs. Cothran; to'hinder, delay, or defraud hiscredhors; and the jU'ry answered that question "that, it was not." So that'the result of that trial on this point was certainly not such as Mr. Yancy-with notice of fraud any further than he had already been. To take the strongest view 'df this matter in favol." of the complainant, I think itmust be held that when he had knowledge of tIre facts on which he nOW bases his claim to recover, the statute commencedw run, against him. Arid I think that the latest period at which he can be.l3aid t9i' have obtained such knowloogewould be in the early part of. 1882,.a.hd nearly thraeyears before hebrougbt this suit. I nlusttherefore sustain the plea which sets up the statute of limitations as a bar to this su.it.
UNITED STAT'Ell ". SLENKER.
Virginia. October 81, 1887.'
POST-OFFICE-MAILING OBSOENEMATTER",,-TEST Oll' OBBOENITY.
Where the writings, papers, and publications sent through the mail by the accused are of an obscene; >lewd, or lascivious character, the faat that they were, so sent in the real oraupposed interest 'of science,philollophy, or,mor, ality. is,im,l:Jlaterial.
SAME-MAILING OBSCENE MATTER-INDICTMENT-SCIENTER. Scienter IlS to the obscene. lewd, and lascivious character
of the. matter mailed ialln. essentia.l ingredient of the offense denounced by Rev. St. U. S. § 3893, use of'tb,e for the circulation of obscene matter,
'section 8893,. Re". St. U;cB.; prohibiting 'suob, publicatiotlS frolllbeing carried in the mail, see U. S. v. Wightman, 29 Fed. Rep. 636, and note. . ,."
.. lAs to what are" obscene; lewd, or lascivious" publications, within the meaning of
and an indictment which' fails to allege such 8cienter is bad on motion in ar· rest; the defect not being cured by Rev. St. U. S. § 1025, providing that no indictment shall be deemed insufficient. nOr shall the thereon be affected by reason of any defector imperfection in matter of form only, which shall not tend to the prejudice of the defendant. 1
An allegation in an indictment under Rev. St. U. S. § 3893, prohibiting the use of the mails for the circulation of obscene matter. that the accused "knowingly deposited or caused to be deposited." the objectionable matter. cannot be extended to embrace an averment of 8cienter, as to the obscene, lewd. and lascivious character ot the matter so deposited
The fact that post-office inspectors resorted to test or decoy letters in order to bring to justice a person of using the mails for the circulation of obscene literature, does not operate to discredit their testimony upon the trial of that person for thatoffeJ:l,Se. ,
Indictment under Rev. St. U. S. § 3893. At the July special term, ,1887, the defendant, Elmina D. Slenker, was indicted under Rev. St.U. S.§ 3893, (2d Ed. 1878) in the district court of the United States .for the Western district of Virginia. The indictment contained two counts. which were ,in these words (omitting formal parts,) viz. : \ ' ,' First Oount.That the defendant, on the fifteenth day of March, 1887, at,' E'tc., "did unlawfully and knowingly deposit and cause to be deposited in the mail of the United States, for mailing and delivery, in thepost-,office Of Snowville, Virginia, certain obscene,lewd, and lascivious writings, papers, prints; and publications, one of which said writings, papers, prints, and publications is called' The Girl and the Dog,' and the other of said writings, papers, prints, and publications are without any title whatsoever; and all Qf ings, papers, prints, and publications are so lewd, obscene, and lascivious, the same would be offensive to the court here, aud are improper to be placed on the records thereof; wherefore the jurors aforesaid do not set forth the same in this indictment. Which said writings. papers, prints, and publications were then and there inclosed In a paper envelope" which said envelope was indorsed in red ink 'Private papers 'of Elmina D. Slenker, Snowville, Va.,' which said envelope containing said writings, papers, printR, and publications, as aforesaid, were then and there inclosed in another paper envelope, which said last-named paper envelope was then and there addressed and directed as follows: 'W;H.Barclay, Richmond, Virginia,'-" etc., . Second Count. Said defendant, on the fifth day of October, 1886, at, etc., "did unlawfully and knowingly deposit and cause to be deposited in the mail of the United States, for mailing and delivery, in the post-office of Snowville, Virginia, certain obscene, lewd, and lasciVious writings, papers,prints, and publications, which SaId writings, papers, prints, and publications are without any title or heading whatsoever, and said writings, papers, prints, and publications are so lewd, obscene, and lascivious that the same would be offensive to the court here, and improper to be placed on the records thereof; wherefore the jurors aforesaid do not set forth the same in this indictment. Which said writings, papers, prints, and publications were then and there
lIn U. 8. v. Chase, 27 Fed. Rep. 807. the court held that an indictment which charged that the defendant knowingly deposited in the llJail all obscene letter, but did n"t that he bad knowledge of ,its character, was defective in matter of form only, and after a plea of guilty such defect was no gronnd for a motion in arrest of judgment under section 1025, Rev. St. U. S.· providing t'hat no indictment · · · Bh,all be dpemed inBufficient, far. imperfections in matter Of form only, which do not tenq to the prejudice of the defendant. '
UNITED STATES V. SLENKER.
inclosed in a paper envelope, which said envelope was indorsed in red ink; ·Private and to be returned to Elmina X,' which said envelope containing said writings, papers, prints, and publications, as aforesaid, were then and there inclosed in another paper envelope, which last-nam'ed paper envelope was then and there addressed and directed as follows: · R. M. Williams, Drawer D 6, St. Louis, Mo.,' and was stamped in red ink, ·Please order them from Elmina D. Slenker, Snowville, Pulaski Co., "ta.,'" etc. The case having been adjourned to the October term, the defendant, on October 31, 1887, was put upon trial upon this indictment· . The court (PAUl" J.) charged the jury as follows: "Gentlemen 01 the Jury: The court instructs you that the questions you are to determine are: (1) Are the writings, papers, prints. and publications alleged in the indictment to have been knOWingly deposited in the mail, for mailing and delivery, by the defendant, of an obscene, lewd, or lascivious character? (2) Did the defendant deposit, or cause to be deposited, in the mail, for mailing and delivt>ry, SUch obscene, lewd, and lascivious writings, papers, prints, and publications? "The test of obsct>nity, within the meaning of the statute under which this prosecution is had, is whether the tendency of the matter sent throuKh the mail is to deprave and corrupt the morals of those whost' minds are open to such influences, and into whose hands such writings, papers, prints, and publications of this kind mayfaH; and "lewd" means haVing a tendency to excite lustful t.houghts. "You are further instructed that, if you believe from the evidence that the said writings, papers, and publications were sllnt through the mail by the defendant, as charged in the indictment, and were of an obscene, lewd, or lascivious character, the object or purpose for which they were sent is not a matter for your consideration. No matter what the motive or purpose for which they were sent, whether in the real or supposed interest of science, philosophy, or morality, if they are of an obscene character. you should find the defendant guilty. The defendant is presumed to know the character of the matter proved by the government to have been mailed by her to Barclay and McAfee. the government witnesses. "You are instructed that the detection of crime by means of test or decoy letters is allowable under the law; that the witnesses Barclay and McAfee were justifiable in resorting to this means to discover violations of the postal laws, and their testimony is not to be discredited because tht'y have resorted to this frequent, and frequently indispensable, mode of detecting crime. Their testimony is entitled to the same weight as that of other witnesses, subject, of course, to the same tests as to its truthfulness· .. If on the whole of the evidence you believe that the writings, papers, and publications charged in the indictment to have been deposited in the mail, for mailing and delivery, by the defendant, were of an obscene, lewd, and lascivious character, it will be your duty to find her guilty. If. however, on consideration of the whole evidence in the case, you have a reasonable doubt as to the guilt of the defendant, you must find her not guilty." There was a verdict of guilty; whereupon, a motion for a new trial. having been overruled, the defense moved in arrest of judgment. H. Allen, Dist. Atty., andF. B. Hutton, Asst. Dist. Atty., for the United States, cited: 1 Bish. Crim. l'1'oc. §§ 504, 611; Helfrick v. Oom., 29 Grat. 846; Code Va. 1&73, p. 1240, § 12; Rev. St. U. S. § 1025; U. S. v. Bennett, 12 Myel'. Fed. Dec. p. 700. § 2485; Oom. v. Williams,2 Cush. 58;:J; U. S. v. Gooding.
v. Young, 15 Grat. 664: Glass V. Grat. 8'27: 'Y. S. V. C1"ldks.hank. 92 U. S. 544: Y. S. V. Ca1'U, 105 U. S. 611 j Com. V. McGa1'1'igal, 1 Belln. & . H. Lead. Crim. Cas. 551: Whart.Crimi Law, §§ 297-304, 215\:l.
12 Wheat. 460; U.S.v. Gaylord, l'1.Fed. Rep. 438, (Judge DIWlIIlIIOND'S opinionj) Bou,v. Law Diet. vide ",Knowingly;'" U. S.v. Bennett, 12 Myer, Fed. Dec.p.697,§ 2 4 8 2 . ' , . Ronald, Hefnwns &qefendant, cited: Rex v. T1,J,cker, Car. Crim. Law, 290:. Com. v. Boynton. 12 Cush.499: Com.
The court sustained this motion'in the following opinion, filed November 4, 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 ill' 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 indictmenfwith unlawfully and knowingly depositing, and causing to be depositep, 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 iuan 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 Qf 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. CarU, 105 U. S:'611, where the indictment alleged, in the words of the statute, that defendant feloniously, and with intent to defraud" ,di<i 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 vardict·. The supreme court saying: "In an'indictment upon a statute it is not sufficieI).t to set forth the offense il1 the words of the statute, unless the words of themselves fully. directi'y, ambiguity, set forth all elements and expressly, witbout any , . necessarr to constitute the offense to be punished." To,the same effect is the decision,of U. S. V. Oruikshank, 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 Cum. V. Young, 15,Grat. 664. It is thjs; "If the indictment may be still the accused may not be guilty of the offense described in the statute; 'the indictment is insufficient. OJ · Let us apply this rule to us. The defendant is knowingly depositing, and to be deposited, in the mail, for mailing and delivery, certain obscene papers, etc. She may knowingly
CHICOPEE FOJ.DING BOX CO. V. ROGERS.
have done this; she may knowingly have 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 the 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 thematerial 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 intervenebetween.the fact of which she is alleged to have knowledge, and separate it from the subject of which she must be chargeq witll having guilty knowledge, and are descriptive of that subject. As stated in the case cited from 12 Cush. BUpra, the guilty knowledge charged wa.'l confined to the act of selling, and did not extend to the character 9f the meat sold. The case chiefly relied:upon by counsel for tho government, to sustain this indictment, is U. S. v. Bennett, 12 Myer,Fed. Dec. 70p. An examinationofthat case will show that the point there raised against the grl;\nt..J indictment was somewhat different from the one ra,ised here. ing them to be the I can.not think the CaSe oj binding authority than the cases w'hich I have cited. The court is of the opinion that the indictment does not s.at forth t.he offense with clearness llnd all necessary certainty , so as to apprise the accused of tb,e, crhne with which she stands charged, and every ingredient of which the offense is composed is not accurately and clearly alleged. It is defective it.does not allege that the defendant knewt4at the writings, papers, etc., whioh she is charged with having deposited in the mail, for .mailing and delivery, were of an obscene, lewd, character. This. conclusion is clearly sustained by principle and precedent; and the motion in arrest of judgment must be sustained. . Judgment stayed, and .defendant discharged.
FO;LDINGBox Co. 11. ROGERS.
COircuit Oo'Urt, 8.D. New York. April 15, 1887.}
PATENTS FOBINvENTIONs-CLAIM FOB PROCESS.
The language of one olthe claims of a patent was as follows: "In the art of scoring Qr creasing paper or 'other kindred substances, preparatory to bending the same for use in the manufacture of paper boxes and similar articles, the step herein set forth, which consists in making the crealle or score bymeans of successive blows or pressures, theflrst of which is lighter than the f()l1owing Reid; that this was a claim for a-general llrocess, and w.as !lot ground acwon for ; .