UNITED STATES V. CLARE:.
(Ctrcuit Court, D. Minnesota. December 14, 1888.)
POST-OFFICE-OFFENSES AGAlNsT POSTAL LAWS-OBSCENE MATTER-INDICT-
ME1'T, An indiotment under Rev. St. U. S. §3893. charging that defendant did knowingly deposit for mailing and delivery certain obscene pictures, etc., is not open to the ,objection that it is nOot alleged that the defendant knew the character of that which he deposited. 1 '
Indictment for Mailing Obscene Matter. Goo. N. Baxter and Henry C. Wood,. for plaintiff: Gould &- Snow, for defendant.
BREWER, J. This is a motion in arrest of judgment. The indictment charges that the defendant did unlawfully and willfully, knowingly deposit and cause to be deposited formailing and delivery, in a post-office of the , United States, to-wit, the post-office at Wiscoy, in said district of Min'nesota, a. oertain lewd, obscene, and lascivious picture of an indecent 'cl1aracter, etc. The indictment does not separately charge both the knowingly depositing of something in the post-office, and also that the defendant knew that this which he deposited was obscene; and the point ;is made that the gist of the offense is that he knew the character of that , which he deposited, and that,in the absence of such an allegation, the indictment iadefective. The indictment follows the statute. That, of course, is not always conclusive, for it is settled by the supreme court :of ,the United States that it is not sufficient in an indictment "to set forth the, offense in the words of the statute, unless those wordsCJf themselves 'fully, directly; and expressly, without any uncertainty or ambigUity, set 'forth all the elements necessary to constitute theofl'ense intended to be punished; and the fact that the statute in question, read in the light of the common law and of other statutes on like matter, enables the courL ,to infer the intent of the legislature, does not dispense with the necessity ,of alleging all the facts necessary'to bring the case within thai intent." m,s. Carll, 105 U. S. 611, and cases cited. Yet there is always a. 'pre.sumptionthatthe language of the statute fully describes the ofl'ense intended to be punished, and consequently that an indictment using that 'language also fully describes the offense. Now, the statute (section 3893, declares' thateveryohscene, lewd, or lascivious book, etc., is hereby declared to be nOli-mailable matter, and shall not be conveyed in the mails, nor delivered from any post-office, nor by any letter carrier; and then adds that any person who shall knowingly deposit anything declared to be non-mailable, shall be deemed guilty of a misdemeanor, etc. The matter mailed as described in the indictment was unquestion-
lIn U. S. v. Chase, 27 Fed. Rep. 807, an indictment similar to that in the principal case was held defective in matter of form only, and cured by Rev. St. U. S. § 1025. For full discussions of the offense of mailing obscene matter, see U. S. v. Mathias, 86 Fed. Rep. 892, and cases cited.
UN'ITED STATES V. CLARK.
ably non-mailable. The 'statute declares that whoevel knowingly'depos. its non-mailable matter is guilty.' The' indictment'alleges thnt the defendant knowingly deposited this non-mailable picture. ' Doubtless the question turns largely on whether'the word, "knowingly," as used in the statute and the indictment, qualifies simply the adjacent verb "deposit," or the whole matter described. It may be conceded that ordinarily an adverb is understood as qualifying its adjacent verb; and yet that is not always true, and in construing words and sentences used in an indictment we are to give them their ordinary significance, in the absence of some technical construction necessarily imposed upon them. Now, it is a familiar use of the adverb "knowingly" that it qualifies both its adjacent verb and the full act thereafter described. A few simple illustrations will make this clear: I say that a party knowingly told a lie. Everyone understands from that that I mean that the party has stated that which he knew to be a lie, and not simply that he stated that which was in fact untrue, yet unknown to him to be untrue. And in thlf same way, when I say that a party knowingly deposited an obscene picture, no one supposes that I mean that he simply deposited a picture, the character of which he was ignorant of. All understand that I mean to say that he has deposited that which he knew to be obscene; and this because the adverb "knowingly," used in sentences of this kind, by the common understanding of all, goes beyond the mere verb, and broadly all that is expressed in the full act charged to have been done. Now, congress, in the section under which this indictment was framed, chose to use language in this way; and, after defining what,was nonmailable matter, declared that anyone who knowingly deposited such non-mailable matter should be punished. Shall I ignore this common understanding of the use of the word "knowingly" in sentences of this kind, or shall I recognize that congress has used this language in its ordinary acceptation; and, having thus sufficiently described the offense, hold thatan indiCtment which follows that description is sufficient? 'Beyond all this there is a secHon (1025) which declares that "no indictment * * * shall be deemed insufficient, nor shall the trial stop, or other proceedings thereon be affected by reason of any defector'imperfection of matter of form only which shall not tend to the prejudice of the defendant." Can it be possible that the defendant was misled' by the language of this indictment as to the exact offense with which he Was charged? Did he for a moment suppose that he was charged with putting in the post-office something of which he was entirely ignorant,or did he understand from the ordinary meaning of the language used that hewas charged with putting in the post-office an obscene picture,......that which he knew to be obscene? I can have no doubt that he was fully informed as to the charge against him, and not in the slightest degree' misled. I am fuBy aware that there are authorities which do not concur with this view, and yet I think those authorities adhere too <;lloseIy to the rigor and technicality of the old common-law practice, which, even in criminal matters, is' yielding to the more enlightened jurisprudence of the predent,-ajurisprudence which looks everrriore at the matter '
of substance and less at the matter of form. Believing that the defendant was fully informed of the matter charged against him, notwithstanding' the cases cited to me of G'om. v. Boynton, 12 Cush. 499, U. S. v. Blenker, 32 Fed. Rep. 691, I am constrained to hold that this indictment is sufficient, and that the motion in arrest must be denied. My brother NELSON agrees with me fully in this matter, and it will be so ordered.
(Di8trict Court, W. D. Tennessee. November 15, 1888.)
FORGERY-OBLIGATION OF UNITED STATES-INDICTMENT-ALLEGATION OF IN' TENT. .
If the indictment be for falsely making and forging an obligation of the United States. it is sufficient to aver in the general language of the statute an intent to defraud, and the name of any person sought to be defrauded need not be mentioned, nor is any more specific ,averment necessary. such as might be required if the offense charged were that of passing or attempting to pass. uttering or publishing the forged security. Guilty knowledge. and an intention to defraud the United States, if no one else, are necessarily implied from the language of the Revised Statutes, § 5414, describing the offense.
SAME-WHAT CONSTITUTES-INDORSEMENT OF POST-OFFICE WARRANT.
It is an offense against the United States, and forgery, under Rev. St. § 5414, to falsely aud fraudulently write the name of the payee upon the back of a post-office warrant upon the treasury of the Uuited States, such indorsement being in a legal sense a part of the lDstrument itself.
The offenses denounced by Rev. St. §§5469, 5470, are not confined to the larceny of articles from the mails, or receiving articles stolen therefrom, and it is not essential to aver or prove all the ingredients of that offense to BUstain the indictment. Any taking' or abstracting the articles, or receiving them, when so taken, with the object described in the statute to "open," "secrete," "destroy," "embezzle," or "steal," is within the statute.
FROM THE MAILs-PLEADING AND PROOF.
INDICTMENT AND INFORMATION-REFERRING ONE COUNT TO ANOTHER.
It is not good pleading to refer to a former count in aid of the averments of another. but it is a matter of form only, and cured by section 1025 of the Revised Statutes.
Indictments for Forgery, and for abstracting and embezzling from the mails. On motion to quash· . lI. JV, McCorry, U. S. Dist. Atty. .W. W. Murray and E. L. Bullock, for defendants.
out in hax verba, avers that the defendant did, "with intent to defrl;lucl, falsely make and forge the name of 'Jas. J. Morgan' on the back ofawarrant," etc., (describing it.) The warrant, as described, and as by its words, is one of the securities or obligations of the United States which section 5414 of the Revised ,Statutes of the United. Statea to protect against forgery, counterfeiting, or "with
sued from th r post-office department for transportation of the mails, and
The indictment for forgery of the treasury warrant is--