FE:bERAL, REPORTER, vol. 38.
(lase against him has' found to be true; it would result that every criminal case in which the oefendant takes the stand and is acquitted could be practically retried upon an indictment for perjury. This never could have been the contemplation of congress in allowing a defendant to be sworn in his own behalf. ' I express no opinion as to whether, if he had been convicted, such conviction would act as an estoppel' against him in a prosecution for perjury) as the question is not involved in this case·
. UNITED STATES
(Di8trice (Jourt, E. D. Mi88OUri, E. D. April 16, 1889.)
An indictment charged defendant with depositing in the post-office for mailing" a certain obscene, lewd, and lascivious pamphlet. of an indecent character," giving its title, and alleged that it .. is so obscene, lewd, and lascivi· ous" that it would be offensive if set forth in full. Held, t11at a de1l!urrer oIl the grounds that the pamphlet was not obscene, and that, if unfit for geperal lawfully be sent to certain persons. to whom the indictcirculation, it ment did not show that it was not mailed, could not be sustained", as, tbe pamphlet could, not be regarded as part of the record, and therefore those " ' questions could not be considered. S. SAME-MEANING OF WORDS-REV. ST. U. S. § 3893. ' , The words "obscene," "lewd," "lascivious." and' "indecent," as used'in Rev. St. U.S. 3893, prohibiting the deposit of publications so, described in the malls. h,ave the same meaning as given them at common law in prosecutions for' obscene l i b e l . ' , 8. SAME'-!ND1CTMENT-DEFENSES. As the statute contains no exceptions to the rule making obscene publications non-mailaple, the fact that a publication which would ordinarily be classed as within its meaning might lawfully be sent to certain persons, does not render it necessary to aver in the indictment that it was not sent'to such persons, it matter of defense to ,show that it was sent to such persons. 4. SAME-PROVINCE OF COURT AND JURY. .' The question whether or not a particular publication, is obscene, lewd, or lasciv'ious is for the jury, under instructions from'the court as to themea-n' ing of the words.
OFFENSES AGAIN!!'!' POSTAL LAWS-OBSOENE MATTER-INDICTMENT.
At Law. On demurrer to indictment. Frank D. Clarke was indicted ;under Rev.St.U. S. § 3893,asamended by act Cong.'Sept. 26, 1888, (25 U. S. St. at Large, 496.) 'He"demWs to the indictment. Thomas P. Ba.shaw, Dist. Atty. Che8ter H. KrwTlt, for defendant. ,i THAYER, J. The indictmenfin this case is in'thEr usual form. , One ofthe counts, which may be taken as a sanlple of all, allegesdhatthe defendant knowingly dppositedfor mailing ill'the ,post-office, at: 'the city bf-St. LOllis, a certain obscene, lewd, and ]asciv,iou's 'iYJ.m:phlet' oran :in" decent character, entitled," DriC]urke'sTl'entise'biI
Nervous, and Special Diseases," which was addreSsed to "Mr. W. E. Deer; Bluff Mills, Indiana," and is so obscene, lewd', and lascivious that said pamphlet would be offensive if set forth in full in the indisltment. Defendant demurs to the indictment on the ground-First, that the pamphlet is not obscene; and, secondly, on the ground that, even if it is unfit for general circulation, yet that it may be lawfully sent through the mails to certain persons, and that the indictment is defective because it does not show by proper averments that the publication was not mailed to such persons. The demurrer, therefore, assumesthlit the publication in question is a part of the record, and that the court may properly determine on demurrer whether it is or is not obscene. This position I -regard as untenable. The practice now become common in this class of <lases,of describing a publication in an indictment in such manner that it maybe identified, and averring that it is obscene,-so obscene that it is unfit to be spread on the record,-was adopted originally, in part .atleast, for thepul'pose of preventing obscene and indecent matter from becoming a part of a permanent public record. The practice was justified on that ground in the case of Com. v. HolmeB, 17 Mass. 337. As the alleged obscene publication cannot be regarcled Rsa part of the rec.ord, it is manifest that it is not touched by the demurrer. The questionwhether it is obscene in such sense as to be non-mailable under any .and all circuDlstances, or whether it might be mailed to some persons, is not before the court for determination at this time. The reason last .assigned for overruling the demurrer was not suggested at the hearing, :and apparently was not relied upon by the district attorney. 'I'he discussion took a wide range. The publication <lomplained of was exhibited to the court, and contrasted with a certain standard medi·cal journal, and much was said on the point whether the publication W'as -obscene in the sense of the common law, and whether common-law tests Qf obscenity are applicable to the case, and as to whether the non-mail.able character of the publication depends to any ex.tent upon the person, <lrclass of persons, to whom it was addressed. .In view of the discus..: sion at the hearing of the demurrer, and the fact that the case remains to be tried, it not be out 'of place to express an opinion on some of these points. In the first place, I remark that the· words "obscene," '''lewd,'' "lascivious," and "indecent," as used in :the federal 'statute, .section 3893, as amended by act Sept. 26, 1888, (25th St. at Large, p. 496,) have the meaning that have been imputed to them at common law in prosecutions for publishing obscene libels. Whether a particular publicatibn is obscene, and for that reason unmailable" must be .determined by common-law tests. At this point, however, arises the ql,lestion whether it is the province of the court or jury to determine with respect to a given publication if it is obscene or otherwise. Tam of the .opinion that the ultimate solution of that qUestion rests with, the jury to the same extent that in: civil· prosecutions for libel, and in criminal; prosecutions since the declaratory act of the· 32 Geo. ,TIL c.60, the' .question wh.ether an article is libelous is for the jury, under proper rections.giv6llo by thecourt.-, Parrrvi1er v. Coupland,. 6 ·Mees. &;
Baylis. v. Lawrence, 11 Adol. & E; 920; 3 State Tr. 37; Moxon'8 Case, 2 Towns. St. Tr. 3M; Starkie, Sland. & Lib. (Wood's Notes) §§ 556 and court must of course define the terms "obscene," "lewd," and 195. "lascivious" as used in the statutes, and may no doubt express its opinion as to whether the publication complained of is indecent, but in the end the jury must find whether the publication, by reason of its effect upon the minds of those into whose hands it may fall, is obscene or otherwise, the view that within the definition given by tbe court. . the question whether a publication is obscene, is generally for the jury, under proper directions from the court, 1 am free to say that if the pamphlet complained of in this case had been set out in the indictment, so as to form part of the record, I should not feel authorized to declare on' demurrer that it is not indecent or obscene. The publication is of such a peculiar character that, in my judgment, both the government and the defendant are entitled to the opinion of the jury as to whether it would probably deprave and corrupt theminjis of those into whose hands the pamphlet might fall; that is to say, whether it is obscene or otherwise. The views that different persons might entertain of the tendency and effee' of such publications are 80 various that these questions ought to be olubmitted to a jury. It was urged that the court ought at least to preIjume from an inspection of the pamphlet that the author's motives were laudable; that his purpose was to benefit, rather than to debauch, the public. But, even conceding this to be so, it will not benefit the defendant, if his pamphlet is found to be in fact indecent or obscene, as it was expressly held in the somewhat celebrated case of Queen v. Hicklin, L. R. 8 Q. B. 371, that the character of a publication as obscene or otherwise is not to be determined by the motives of the author in making the publication. In the case of U. S. v. Ohe8man, 19 Fed. Rep. 497, Judge MCCRARY said: "There are many things contained in the standard works. (upon medicine,) which, if printed in pamphlet furm, and spread broadcast among the community. being sent through the mail topersuns of all cll;&8ses, including boys and girls, wuuld be highly indecent and obscene." A very similar remark was made by COCKBURN, C. J., in Queen v. Hicklin, L. R, 3 Q. B. 367, aupra. I do not understand from this language, however, that the character of a publication; whether obscene or otherwise, is to be determined by other criteria than its subject-matter, the method of treatment of the subject involved, the illustrations it contains, and its tendency, in.alI these respects, to corrupt those whose minds are open to immoral influences. The inference to be drawn from what was said in the two cases last cited appears to me to be this: that even an obscene book, or one that, in view of its subject-matter, would ordinarily be classed as such, may be sent through the mail, or published, to eertain persons, for certain purposes. }'or example, a treatise on venereal dis· eases might be sent through t.he mail, or delivered to a student or practitioner of medicine, and ptlrhaps to other persons, for certain purposes. But if an obscene .book is deposited in the mail,arldressed to a certail: perSOD, it is not necessary to allege in an indictment for such an act thaT
MURPHY tI. DUNHAM.
the person to whom it was addressed was not one of those persons, or did not belong to a class of persons to whom such books might lawfully be sent by mail. If it be a fact that the defendant in any case was justified in sending what would ordinarily be deemed an indecent publication through the mail, by reason of the calling, profession, or peculiar need of the person to whom it was sent, that is a matter ofdefense to be brought forward by the defendant, and he may do so on a plea of not guilty. Such a defense need not be anticipated by any negative averments in the indictment, as it is not a caSe in which a pleader, in stating an offense, is required to negative exceptions contained in the enacting clause of the statute declaring the offense. Section 3893 contains no exceptions. Obscene publications are declared to be non-mailable matter. If tor any reason, or under any circumstances, that which is indecent is deposited in the mail, the defendant should be required to el:ltablish the facts or circumstances, if there be any, which render the act justifiable. The rule on this subject is well illustrated in the case of Rex v. VantandiUo, 4 Maule & S. 73; 1 Chit. Crim. Law, 231, 283, 284. Matters purely defensive need not be anticipated in an indictment. In. the case of U. S. v. ilirll, 10.I)U. S. 611., to which allusion was made on the argument, the court held that the word "knowingly" was to be implied or interpolated into the statute, (seetion 5431,) and accordingly ruled that an indictment under that section, which did not allege that the obligation uttered was known to be counterfeit, stated no offense. I cannot see that that decision has any application to the case at bar. For the reason first assigned the demurrer is overruled.
(Dilt'I'iet Oourt. E. D. Mkhigan. April 15, 1889.)
1.. MARnm INSUBANCE-ABANDONED CARGO-SALE. The cargo of a vessel sunk in forty feet of water and abandoned to thl) underwriters is the proper subject of a sale by such underwriters to a third person. ' B. SAllE. Such cargo is not by the common law a wreck (If the sea. Wreck of the sea is confined to goods cast upon the shore, or to jetsam, flotsam, and ligan. 8. LIMITATIO;NS OJ!' ACTIONS-TREASURE-TROVE. The year and a day fixed by the statute of Westminster within which the owner of wreck is bound to make his claim, begins to run from the day the goods are actually taken and seized by the finder. 4. STATES AND STATE OFFICERS-TITLE OJ!' STATE TO PROPERTY SUNK IN LAKE
The United States has no title to property sunk in the bottom of Lake Michigan, as the proprietorship of the state extends to the center of tbe lake, subject only to the right of congress to control its navigation.
SAME. . MrcWGAN.
The title of sucb property when sunk off the coast of Illinois does not vest state statute. I. in the state of Illinois by virtue of