are the same kind of flowers that are sold by dealers in millinery goods for millinery purposes. But they are stuck into a little stand or box, which makes them salable as ornaments. 'fhe question is whether, if these goods can be allowed to be imported in this form,-if artificial flowers Can be allowed to be imported in this form,-whether it would not open the opportunity to large frauds upon the revenue, because they might introduce all kinds of flowers, the most expensive kind of flowers, upon a little stand of this kind,-a stand that costs nothing, or but it trifle,-or upon any kind of a paper box or a paper stand, or attach them to anything, so that thflY could say that they came as a specific article, and as soon as they arrived, and had passed the custom-house as a manufacture of cotton, remove the stand to which they are attached, and use them for millinery purposes. The question, then, is, did or did not the collector act.wisely and within the law when he assimilated these goods to artificial flowers which are imported for millinery purposes? Did they or not most resemble artificinl flowers imported for millinery purposes? And if, from the proof in the case, you are satisfied that they do more resemble the artificial flowers imported for millinery purposes than any other article, that they are more like those than they would be like a piece of cotton sheeting, or muslin, or any other cotton fabric, which was not worked into a tiower,-because the leaves and stems of these are probably made of some cheap cotton fabric,-then it is for you to say whether the collector did not act within the power which is delegated to him under the law.
UNITED STATES 'l1. CLARKE.
(DlItrice Oourt, E. D. MiaSO'll/N, E. D. May 18,1889.) 1.
PosT-OnICE-NoN-MAILABLE MATTER-OBSCENE PUBLICATIONS.
The word "obscene," within the meaning of actSeptemher 26, 1888, (25 U. S. St. 496;) forbidding the sendhilg of non-mailable matter through the mails, when used to describe a. book, pamphlet, or paper means a publication containing' immodest and indecentmattar, the reading' Whereof would have a tendency to deprave or corrupt the minds of those into whose hands the pUbliCation might fall whose minds are open to such immoral influences. A "lewd" book, pamphlet, or paper, within the meaning of the statute, is one that describes dissolute or unchaste acts, scenes, or incidents, or one the reading whereof, by reason of its contents, is calculated to excite IU1ltful and sensual desires in those whose minds are open to such influences.
The word "lascivious," within the meaning of the statute, is synonymous with the word "lewd,"
If the effect of pamphlets and papers sent through the mails, as
11 wbole. would be to deprave and corrupt the minds of those into whose hands they might come whose minds are open to such influences, or to excite lustful or sensual desires, they are obscene and lewd, whether sucb. effect on the .D;linde of readers is pr?duced by single passages or portions of them, or by many passages or portIons.
UNITED STATES ". CLARKI:.
'Indictment for Sending Obscene Matter through the Mails. The matter complained of was-Firm, a small pamphlet in papel' cover, entitled "Dr. Clarke's Treatise on Venereal, Sexual, Nervous, and Special Diseases," and consisted mainly of a description of the causes and effects of venereal diseases; and, secondly, of two circulars, one of which described in separate paragraphs the symptoms of various venereal diseases, and the other contained a list of questions to be answered. Thcma8 P. Bashau), U. S. Dist. Atty. Ohester H. Krum, for defendant. THAYER, J., (charging jury.) The admission having been made during the course of the trial that the defendant caused the pamphlet and two other papers referred to in the indictment and offered in evidence to be deposited in the St. Louis post-office for mailing to the several persons to whom they were addressed, the sole question that remains for you to consider and determine is whether the pamphlet and papers are obscene, lewd, or lascivious. If they were obscene, lewd, or then they were non-mailable matter, and an offense was committed in causing them to be deposited in the post-office for mailing. Now the question arises, what is an obscene, lewd, or lascivious publication within the meaning of the statute? . I propose to define those terms as well as possible, and leave you to detemline in the light of such definitions, and all the circumstances of the case, whether they fall within the definitions I shall give. The word "obscene" ordinarily means something that is offensive to chastity,something that is foul or filthy, and for that reason is offensive to pure-minded persons. That is the meaning of the word in the concrete. But when used, as in the statute under which this indictment is framed, to describe the character of a book, pamphlet, or paper, it means a: book, pamphlet, or paper containing immodest and indecent matter, the reading whereof would have a tendency to deprave and corrupt the minds of those into whose hands the publication might fall whose minds are open to such immoral influences. U. S. v. Bennett, 16 Blatchf. 338; Queen v. Hicklin,L. R. 3 Q. B. 371. A lewd book,pamphlet, or paper, within the meaning of the statute, is one that describes dissolute and unchaste acts, scenes, or incidents, or one, the reading whereof, by reason of its contents, is calculated to excite lustful and sensual desires (that is to say, a desire for the gratification of the animal passions) in tHose whose minds are open to such influences. The word "lascivious" is very nearly synonymous with the word "lewd;" so nearly so that I will not undertake to draw a distinction between the two words. For the purposes of this case it may be said that if the pamphlet and papers involved are not lewd or obscene in the sense that I have defined those terms, then they are not lascivious, and you need give yourselves no further concern about the exact meaning of that word. In view of what has been sa-id it follows that, if you are satisfied beyond a. reasonable doubt that the pamphlet and papers, in question in this case, contain such immode.$t, indecent, or filthy matter that the reading thereof would 16n4
to ,arid corrupt the ·niinds:;of those persons into:whose hands the same might fall whose minds'areopen to such influences, then' you should· find· the 'defendant guilty. 'Or if you are satistred beyond a rea· sonable doubt that thesubject.matter:ofthe pamphlet ,and papers is of such character as wbOld tend to excite' lustful and sensual desires in the minds of those persons into whose hands they might oome, whose minds are open to influences of that sort, then you should find the defendant guilty. If you find that the pamphlet is obscene or lewd, and that the other papers are not, or, vice versa, that the papers are obscene or lewd and the pamphlet is not, vou can return a verdict against the defendant 6n :SOme' counts, and in' his favor iri others, according 'as you find' the character of the several publications to be. I , These areas precise definitions and' directions as"it is possible for me to give. The case is one that addresses itself largely to your good judgment" common sense, and knowledge of human :nature, and the weaknesses of human nature. You must consider 'carefully the contents of the pamphlet and papers iuthe first instance, and then the effElct that the reading of such contents would naturally have on that cl9:Ss of persons into whose hands the publications. might fall, whose thoughts, emotions, or desires are liable to be.infhlenced or directed by reading matter such ·as: the publications contain. There is to be found in e\rery-community· a' 'class of peoplewl)o are so intelligent or so mature that their minds are not liable to be affected by reading mat. ter, however obscene, lewd, or indecent it may be. Then there is another large class to be found in every community-the young and immature, the ignorant, and those who are sensually inclined...,.,.who are liable to be influenced to their harm by reading indecent and obscene publications; The statute under which this indictment is frllmedwas designed to protect the latter class from harm" and it is a wholesome statute. Hence, in judging of' the tendency of the publicatiobS to deprave and corrupt tpe mind, or to excite lustful or sensual desires, (which are the tests of obscenity and lewdness,) you should consider the effect that the publications would have on the minds of that class of persons whom the statute aims to protect, and the liability oftha publications 'to J/:et into the hands of that rather than the effect such publiCations would have on people of a high order of intelligence, and those who have reached mature years; who by reason of their intelligence or rears 'are steeled against such influences. As I said before, you inust bring your common sense and knowledge of human nature and its weaknesses to the consideration and determination of these questions. Now, gentlemen, there area few.incidental matters which I feel bound to notice in view of what has oceurredduring tbe trial. In the first place, you must not allow the fact'that defendant adverLises his calling :quite extensively in the newspapers to prejudice your view of the case. You have nothing whatever to do, with a question of professional ethics of that sort The defendant has a.right to advertise his calling if he so desires, ahd that is not an offense· in the eye of the law. If the publi,<lations which he' deposited in the mail are neither obscene, lewd, nor
lascivious in your opinion, he is entitled to a verdict of acquittal; aM you must not allow your attention to, be diverted from the real matter in issue, or your minds to be prejudiced, by any extraneous considerations of the kind to which I haNe last alluded. 'rhe question whether defendant is ,a licensed physician under the laws' of the state is terial. In the second place, gentlemen, I desire to say that I have no doubt that under the statute, under wbich this indictment is framed standa'rdmediCal works (and by that I mean works that are studied and consulted by physicians, and are kept in medical and public may lawfUlly be sent through the mail to. persons who buy or call for them for the purpose of seeking. information on .thElsubjects of which they treat. But 1 feel bound to say that, in my opinion, there is no evidence in this case that would warrant you.in finding that thepubli'; cations complained of in 'the indictment are standard medical works or publications., Furthermore, gentlemen, I have no doubt that persons may; lawfully communicate through the mails with, their physlCians by describing; symptoms of their physical ailments, habits, and practices,. and asking ,professional advice in relation thereto; and I have n() doup.t that in response to such inquiries a physician may lawfully advise a patrenktblfough the mails with respect to the SUbject-matter of such But I feel bound to say that, in my is no evidence that would warrant you in the tions complained of in this Gase, were sent by a physician to his patient in response to a request for such publications as were sent; and that the mailing of them to the parties named in the indictment was justified as being a communication by a doctor to his patient. Therefore, gentlemen, you will decide the issue with respect to the obscene and lewd character of the publications, unembarrassed by any consideration of the two defenses last alluded to, which might be appropriate in certain cases, but are not applicable to this case. There is another fact to which it is necessary to allude. The defendapt's .(}()uIlsel, fOlthe purpose of enforcing his view that the publications complained of are neither obscene or lewd, has read in the course of his argument certain passages from certain well-known authors,-from Sterne. Suetonius,-and even from the Bible. The passages read, taken in connection with their context, may be, or may not be, obscene You are not trying that question, andyou are not called. upon ,ill this case to determine, nor will your verdict in this case (whether it is guilty or not guilty) decidEl whether the Bible, Shakespeare, Sterne, and Suetonius must be excluded from the mails. :J; trust you will :not· allow any consideration of the possible tendency of your verdict to exclude other standard literallY works from the mails, to prevent you from passing an honest jUdgnIent ,upon the question you have to decide iIi this case,-whether, the pamphlet"and papers complained of are obscene or lewd, and tend to corrupt and deprll.vetthe Dliil1da (;)f'readers. Of course, so far of the ef'ecUhatShllol}esp6Jlre's writings, or any .author's writings. notwitbstlil.nding certain pa.ssages
tain, you' have the right to resort to that experience in determining what will be the probable effect of the publications involved in this case, providing you think such comparison, or a reference to such experience, will be of any service, and will aid you in reaching a correct conclusion. I think this is all that is necessary to be said in this ease. I ask you to consider the case fairly, and decide the issue that I have defined as to the character of these publications, according to your honest judgment of the effect that such publications will have on the minds of those that read them. The jury impaneled in this cause, after retiring, returned into court, and submitted to the court the following question, to-wit: "If the jury find any portion of the book, pamphlet, or circular obscene, lewd, etc., would such finding be sufficient p;rounds for them to condemn the whole book, pamphlet. or circular? W. S. Foreman." Thereupon the court further instructed the said jury as follows, to-wit: "If the effect of the pamphlet and papers as a whole would be to deprave and corrupt the minds of those into whose hands they might come whose minds are open to such influences, or to excite lustful or sensual desires, then the pamphlets and circulars should be found to be obscene and lewd, whether such effect on the minds of readers is produced by single passages or portions of the pamphlets and circulars, or by many . passages or portions." The jury returned a verdict of guilty on all counts.
UNITED STATES tl. AI,I,EN.
(Diltrict Oourt. N. D. Iowa, Jv. D. May 28, 1889.)
INTERNAL REVENUE-VIOLATION OF LAWS-RETAIL DEALERS.
Defendant was engaged'in procuring and furnishing to anyone who would patronize him liquors in quantities less than five gallons. He testified that he received orders. requiring the person ordering to pay 10 cents down for a bottle of beer, and when the beer was delivered. an extra 15 cents, as remu. neration for· going to a neighboring state to procure it. But the evidence failed to show that defendant bought specific quantities of liquor to corre· spond with special orders, but showed that he bought beer by the case. and raid for it and sold it to anyone desiring it. I:1eld,. that defendant was a dealer," within Rev. St. U. S. § 8242, requiring persona carrying on the business of retail liquor dealer to pay a special tax.
Indictment for Carrying on the Business of a. Retail Liquor Dealer, without payment of the tax. On motion for new trial. T. P. lffttrphy, U: S. Dist. Atty. Isaac Pendleton, for defendant.
SRmAS, J. The indictment in this cause chargoo the defendant with a violation of section 3242 of thel Revised Statutes l in tha.t he was carryoti the business of a retail liquor dealer at Sioux City, Iowa, without