etc., "it shall 'be lawful for the party against whom such judgment is rendered at any time before the next succeeding term, to pity Itll costs recovered thereby, and upon application the court shall vacate such judgment." It s.eems to me the party has brought himself within the very letter of the statute. It says, "before the first day of the next succeeding term." The party did pay the costs, and did file his motion, and that 'is making his application. Delay in the action of the court does not defeat his right. 'l'he hardship of this case, if there be hardship, ought not to interfere with the general rule. The case must be controlled by that rule. Judgment vacated, and a new tJ ial ordered.
UNITED STATES'll. HARMON
, , 'j
(DiBttiet Oourt, .D.
May 1, 1888.)
POST-OFFICE-MAILING OBSCENE MATTER-INDICTMENT.
An iudictment under Rev. St. U. S. §8893. charged defeudants with mailing "a certain obscene·.lewd, and lascivious paper and publication of an indecent character called' Lucifer,' which paper and publication is so obscene. lewd, and lascivious as to dispense with the incorporation of the words and figures in this indictment," etc. Held, on demurrer. that the identification of the obscene matter was insufficient. neither the date of the paper, nor the title of the article, nor its general tenor or pUfllort being given; and that the indictment was therefore bad.
Indictment under RlilV. St. U. S. § 3893, the mailing of obscene matter, etc. On demurrer. David Overmyer and (). O. Clcmens, for. the demurrer. W. C. Perry, Dist. Atty., contra. ' FOSTER, J. This indictment is. drawn under secthb'3893, Rev. St. It charges that the defendimts did unlawfully and knowingly deposit in the United States post;-<>ffice at Valley Falls, in this district, addressed to, and forthe purpose o(tpailing and dclivering to various parties therein named, th,rough the United States mails, a certain obscene, lascivious paper and publication of an indecent character, called "Lucifer," which paper and publication so deposited for mailillg is so obscene, lewd, and lascivious as to dispense with the incorporation of the words and figures in this indictment, said parties well knowing that said paper and publication was non-mailable matter, contrary to the form of the statute, etc. It will be observed that the paper alleged to be obscene, and to have been mailed' by the defendants, is not described or identified in any manner except.by its title, "Lucifer." It appears to have been a newspaper published at stated periods at Valley FaIls. The date of the particular issue is not set out, nor is the article OJ.: articles complained of identified by title or cuntents. There have been a great number of the paper issued entitled "Lucifer," and proba.bly mailed te> these same par-
BABCOCK tl. UNITED STATES.
ties, and each and everyone different from the others. How are the accused to know what particular paper, or what particular article of the paper, is referred to in the indictment? The accused are entitled to be informed of the specific charge made against them, and it must be sullicientlyexplicit and definite to enable them to prepare their defense, and present their evidence; and further, to enable them in any future prosecution for the same offense to make the plea of autre lois acquit or autre lois convict. This indictment is clearly defective in this respect; nor can it be helped out by means of a bill of particulars. The offense charged is an infamous crime. under the decision of the supreme court, (Mackin v. U. S. 117 U. S. 348, 6 Sup. Ct. Rep. 777,; Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. Rep. 935j) and the accused cannot be put upon trial except upon the presentment of a grand jury, (Article 5, Amend. Const. U. and all the essentials of the accusation must be presented by the grand jury in their indictment; and neither the court nor parties by consent can add to or take from the indictment, (Ex parte Bain, 121 U. S. 1,7 Sup. Ct. Rep. 781.) tt is not sufficient forthe.grand jury to allege that the contents of the paper are too obscene to bespread upon the records, and omit every means of identification. Surely the objectionable matter can be described or identified in some way, without giving offense to the court, or defiling its records with scandalous and indecent matter. The date of the paper, the title of the article, or its general tenor and purport, couched in decent language, would serve to make the charge definite and certain. The demurrer to the indictment must be sustained.
BABCOCK 11. UNITED STATES.
(Oireuit Oourt, D. Oolorado. May 5, 1888.)
PERJURY-CONSTRUCTION Oll' STATUTES-PROVING ON
The provisions of Rev. St. U. S_ §!:i 5392, 5393. defining. perjury and subornation of perjury, were reaffirmed in the Revision of 1874. and. being_general in terms, were not repealed pro tanto by the special act of 1857. (11 U. S. St. , at Large, 250,) I?roviding for oaths, affirmations. or affidavits made or taken before any register or receiver of any local land-office, or used or filed in any such office, in respect to any right, claim, or title to public]ands.
2. SAME-INDICTMENT. An indictment for subornation of perjury charged that defendant did soand pretending to be licit, s.l1born, and procure an unknown person :Mary L. Pratt, who then and there took an oath admiDlstered .by the register of a local land-office, she, the said person, not believing the same to be true, as defendant then and there well knew, and that she did take the oath,signed and subscribed the affidavit, not believing it to be true, all of which defendant wed knew. It also set out the substance of the affidavit, and alleged wherein. it waf:l false. Held, that the indictment was clearly sufficient. lJ. SA.:ME-JUDICIAL NOTICE. An indictment for subornation of perjury in procuring false affidavits to be subscribed before the register and receiver of a local land-office, need not aver that suoh officers were competent to administer an oath; as the court .wiU take judicial notice that they are, under the statute, so authorized.