.'QJ.IIITJilD STATES V. HARMAJ.II. ,
for the testimony of the persons at whose house she was for some time prior to the time these events oCcurted, and from which place she had directly come, and that is that she had had severe spasms or epileptic fits, llnd had been subject to them for years; that she used considerable quantities of opium and morphine, and spent a great deal of her time sleeping or in a stupor. The proof further shows that after this time she used considerable quantities of morphine. So I am satisfied that she was and is what is calle4 a "morphine eater," who involuntarily loses consciousness when the attention is not specially engaged, and often while in conversation with others. This is common experience or observation. I have .ca.refully considered the evidence on both sides, and. am satisfied that as. the burden of proof is upon the plaintiff, and that, as her own testimony is so much weakened by the contradiction of her statements by credible and disinterested witnesses upon important points, her interest in the result of the suit, and what is evidently her mental condition, produced by her bodily sufferings and the U8e of opium and ll1orphine,ft is not sufficient to maintain her action, when disproved by the testimony of the porter, whose special business it was to make this announcement, and whose attention was called to the circumstance the next day; and that the testimony of Bullock, giving to it all the weight to which it is entitled, is. not sufficient to overcome the testimony of the defendant, and give such a preponderance' of weight to her evidence as to entitle the plaintiff to a recovery. The condition of the plaintiff is certainly a deplorable one; broken down by disease, abandoned by husband and children, and thrown on the cold charity of the world. She is certainly a proper subject to be taken care of by the public, or some of our charitable institutions. But, neither the defendant nor the interests represented by him being under special obligations to take care of and provide for such unfortunate people, he cannot·be required to do so. The result is that the finding of the facts, as the verdict of a jury, must be in favor of the defendant, and a judgment rendered in his favor, but without costs, except his own costs, which will be paid out of the funds in court.
UJ.IIITED STATES 'V. HARMAN.
(District Oourt, D. Kansas. June 15,1889.
Under Rev. St. U. S. § 3893. providing that "every obscene. lewd. or lascivious book, pamphlet. picture, paper, writing, print. or other publication of an indecent character," is non-mailable matter, etc., the offense is committed by mailing a paper containing a single obscene article. among other articles not objectionable.
INDICTMENT AND INFORMATION-ELECTION BETWEEN COUNTS.
Where an indictment for mailIng a newspaper containing an obscene article includes a number of counts. charging as a separate offense the mailing of 8. copy of that issue to each of 8. number of persons. the objection that all the counts are for the same offense should be made by motion to require the pros.6cuUon to elect, and not by motion to quash the ind,ictment.
FEDERAL REPORTER, vol. 38.
On Motion to Quash Indictment. W. a. Perry, U. S. Atty., for plaintiff. David Overmeyer and G. O. OWl'nerl,8, for defendant. FOSTER, J. The defendant, Moses Harman, is charged with having unlawfully and knowingly deposited in the United States post-office at Valley Falls, Kan., for mailing and delivery to different parties, a certain obscene article of an indecent character contained and printed in a publication entitled "Lucifer." There are a great number of counts in the indictment, and it is unnecessarily long. The articles complained of anI four in number, and were mailed at different times. The defendant demurs to the indictment on the ground that it does not charge an offense under the law; that the statute does not reach a case of mailing a paper containing an obscene and indecent article, but that the publication, paper,or periodical itself must be of an (Ibscene character as a whole./ Section 3893 of the Revised Statute declares as follows: "Every Qbscene. lewd. or lascivious book, pamphlet, picture. paper. writing. print, or other publication of an indecent character .. .. .. are hereby declared to be non-mailable matter, and shall not be conveyed in the mails nor delivered from any post-office, nor by any letter-carrier." Counsel for defendant, in support of the demurrer, have made an ingenious ·argument, and one showing much research in the field of generalliterature. They insist that if an artiole in a paper or other pub. lication comes within the meaning of the law, then by the same reasoning a chapter or sentence of a book which is obscene would bring under the ban of the law the whole book, and would exclude it from the mails. As a re$ult. not only medical works, but the writings of such authors as Swift, Pope, Fielding, Shakespeare, and many others, and even the Bible itself, would be denied the privileges of the United States mails. Undoubtedly there are parts of the writings of said authors, and many others equally noted, which are open to the charge of obscenity and lewdness, but anyone objecting to such works being carried through the mails would be laughed at for his prudery. I have but little patience with those self-constituted guardians and censors of the public morals who are always on the alert to find something to be shocked at; who explore the wide domain of art, science, and literature to find something immodest, and who attribute impurity where none is intended. The law is founded on reason and common sense, and the statute was enacted to prevent the mails from being used to disseminate the vile literature and indecent pictures with which the country was flooded; those things calculated and intended to create and cater to a morbid appetite for obscenity and lewdness, and to corrupt the morals of the people, and especially the young, who are more susceptible to such influences. U. S. v. Bebout, 28 Fed. Rep. 522; U. S. v. Chesman, 19 Fed. Rep. 497. No one in tbis day can deny the right to the widest latitude of discussion of all subjects of interest to the people. Any thought which may contain the germ of an idea calculated to benefit any human being) when couched in decent language, ought to be disseminated among the people.
UNITED STATES !1. HARMAN.
The question of obscenity in any particular article must depend larglly on the place, manner, and object of its publication. It would not l\(' proper to discuss certain matters in a family newspaper which might l,r, discussed with propriety in a medical journal. Again, if the writer Wfl' in good faith attacking some great. flagrant wrong, the me of plain lan, guage, although offensive to ears polite, might be permitted. It il claimed for defendant that such is this case, but it does not s,o appear 01' the face of the indictment. It seems to me that the first two of the articles set out are per 8e obscene and indecent in a publication for general circulation. Is it an offense under the statute to knowingly mail a paper containing, an article or articles obscene, lewd, or indecent, or must the paper as a whole be obnoxious? If the latter is the rule, it would seem to apply to writing as well as printing. So a letter or other writing, unless the objectionable contents predominate, could not be excluded from the mails. The statute uses the words "print or other publications of an indecent character." What is meant by print? Is it printed letters, or a picture? The word "picture" appears just before it in the statute. Undoubtedly, in its broadest sense it may be an impression of either figures, characters, or letters. In the more common sense it is used as applicable to letters. Another question naturally arises under the statute. Does the term publication necessarily refer to the paper published as a whole, or may it properly be applied to an article published in the paper? We speak of the publication of legal notices, or the publication of an article in a newspaper. Suppose the obscene article was cut from the paper and inclosed in an envelope. It would be a print or publication, and would be non-mailable. I can see no reason why it is any the less objectionable when mailed as an integral part of , the original paper. It is apparent that the construction of the statute contended for by defendant would practically defeat the object and purpose of the law. It would be a very dull man who could not conform his publication or written communication to the exigencies of the situation. A further objection is made to the indictment, that there is a joinder of a multitude of counts for the same offense. I have serious doubts whether the publisher of an obscene paper can be convicted of a separate offense for every person to whom he shall mail that particular issue of his paper. At the minimum imprisonment, even under a fine, the ordinary human life might not serve to fill out the period. But it seems to me that the most defendant can claim on that ground is that the government be required to elect on which counts it will prosecute. The motion to quash is overruled: I Since writing the foregoing opinion my attention has been called to a case recently before Judge THAYER, of the Eastern district of MissoYri,U. S. v. Clarke, ante, 500. From what appears in the published extract of the case, it seems Judge THAYER takes a similar view of the law, on the chief points, as herein expressed.
. (Oircuit Court, E. D.Mi880'!lri, Pl. D. May 25,1889.)
PATENTS FonINvENTIONS-LAPBE OF FOREIGN PATENT.
Letters patent of the united Sta'tes. granted after an English patent for the same invention had lapsed alld become void by reason of non-payment of a stamp duty, held, granted without authority of law.
The commissioner of patents has no authority, under section 4887, Revised Statutes of the United .States, to grant letters patent for an invention pre-. viouslypatented abroad, after the f()reign patent has expired by reason of the failure of the inventor to comply with some requirement of the foreign patent law. Letters patent of the Unted States, issued pursuant to section 4887, only continue in force during the actual existence of the prior foreign patent having the shortest term.
SAME-DURATION OF LETTERS.
A patent for an invention cannot be reissued in such form as to enlarge the original claims, unless there has been a clear mistake inadvertently committed in wording the claims.' ' ,
fl. SAME-COMMISSTONEll'S DECISION..;....REVlEW.
On the .trial of an action for infringement of reissued letters patent, the finding of the commissioner of patents, that the original patent was inoperative by reason of inadvertence, accident,or mistake; may be reviewed to the extent of determining whether what was described and alleged to be a mistake when the reissue w.as applied for was such a mistake as warranted a reissue. 6. REISSUE- V ALJDITY. Where a patent was surrendered and reiss)led for the purpose of invalidating a subseq,uent patent for a similar invention; and one element of a combination claImed in the original letters was omitted in combinations claimed in the reissue, thereby enlarging certain claims; and it appeared that the element so omitted was intentionally included in the combinations as claimed in the original letters, for the purpose of describing a combination that. as a whole, would constitute an operative and useful'machine; and such element was in fact necessary to make the machine operative and useful,-held, that the enlarged claims of the reissue were void (a) because the original claims were not formulated through accident, inadvertence, or mistake; and (b) because the patentee had such full kilOwledge of all the facts, when the original claims were drafted, that his failure to claim the particular combination claimed in the reissue amounted to an abandonment of the same to the public.
In Equity. This was a bill filed to restrain the infringement of letters patent of the United States No. 260,232, issued June 27, 1882, to Henry Huber, assignee of Peters & Donald, as well as to restrain the infringement of reissued letters patent No. 10,826, issued April 19, 1887, to James E. Boyle. Both patents are for improvements in sanitary water-closets. Huber is owner of patent No. 260,232, and sole licensee under reissued letters patent No. 10,826. Rev. St. U. S. § 4887, provides that"No person shall be.debarred from receiving a patent for bis invention or discovery, nor shall any patent be declared invalid, by reason of its having been first patented or caused to be patl1nted in a foreign country, unless the Bame has been introducel into public use in the United States for more than two years prior to the application. But every patent granted for an inven-