UNITED STATES t7. CLARIDa.
turned. They could have done nothing different. Their report was regularly made to the collector, with the affidavit, signed by Mr. Dietze, stating the above contract. Whether it was sworn to or not is immaterial. The report was one which they were required to make in the ordinary course of businesl'l. It thus appeared to the collector that Dietze came here under a contract to work for $25 a. week, and upon this report' the prisoner was liable to be sent back to the place whence he came. Al! that the court has to do with the matter is to see that the proceedings in ascertaining the facts are regular and fair; and it is plain, upon this testimony, that they were without a shadow of irregularity. If the prisoner made false statements to the examining officers, he alone is to blame for the condition in which he finds himself now. It is not possible for me to release him upon habeas corpus. It may be a suitable case for an application for a further hearing hefore the collector. I think it is so. But it will be for the collector to hear any such application in the first instance, and to determine it, not for this court; be-' cause this court is not the tribunal to make an original examination into the facts, but merely to see that the proceedings by the collector or other officers were fairly cdnducted, and legally sufficient. I cannot say that they have been in any respect irregular or unfair; and they were based upon evidence that was the hest that could be obtained, and apparently conclusive. rt is impossible for the court to interfere with the custody of the prisoner. He must therefore be remanded; but with a recommendation to the collector that he authorize a re-examination of the facts.
(DIstrict Oourt, E. D. Missouri, E. D. November 7, 1889.)
CRIlIIINAL LAW-VERDICT-ARRESTOl.' JUDGMENT.
Where Bverdict finds defendant "guilty on all the counts contaIned in the mcnt, " tbe fact tbat some of the counts are bad does not warrant an order ing judgnient, where some are good. A count in an indictment, under Rev. St. U. S. § 8892, fpr depositinR' obscene matter in the mail, described the paper deposited as "a certain obscene * * * paper, print, and pUblication, of an indecent character, begin!ling with the words fol. lowing, to wit: 'As long as there is life there is hope,' and then snd there con. tained in a paper wrapper having thereon the address * * * following:'W. E. Deer,Bluff Mills, Indians, via Waveland;' butwhioh paper is so obscene a8,to be offensive, "etc. The paper, when produced, proved to be a form of ciroularprepared by the defendant for ciroulation through the mails. Several dars before the trial' the defendant craved and obtained oyer of the indecent paper 1D question. Held that, under the circumstanoes, the description of the vaper wss suffioient.
OFFENSES AGAINST POSTAL LAWS-DEPOSITING OBSCENE MATTER IX MAIL-INDICTMENT.
At Law. On motion in arrest of judgment, and for new trial. Indictment of Frank D. Clarke for depositing obscene matter in the mails. :B'or on demurrer to indictment, see 38 500. For report of charge to jur,Y, see Id.732.
; /Jeor;ge D,. lfrynold8,··Piat,· a,ttY;i f, .O.H.. :for defen<ianto; .. 'J
'If it should that counts 2, 3,5,6, 8, and 9.arlil·q.efective because of t.he obscene publito therein ifil yet that would not warrant an order Judgment on Nos. 1, 4, 7, in which the indecent paruphI et cOmplained 9f is described with sufficient certainty. It mustl;>e bOJ:ne in mind that verdict in this case,is not a dict of "guilty." It is s, that specifically finds the defendant "guilty on all; the counts the indictment." The jury expresslyd,ecllLre ,that the charge.laid in ell-chcount iaproven. In such cases the rule is that, jf any of the.counta.are good,judgment upon the verdict as tq such countscannof arrested. If some'Jcounts of an indictment are gppd, and othersbad,i8lld the verdict is merely s general verdict of gumY,so that it is impol';lsible to say Whether the jury intended the. finding to One count,:ortoall, it might be the duty of the court, (acc;prding to the authorities cited by defendant's counsel) to arrest the judgment on.all the counts, 'if, the trial:thecourt's attention was. QRlled,. to tpe'defective COUnts'd and it was asked to withdraw the same from. thEqJOnsideration of the jury, and it refused, to do so. This disposes of the motion in arrest, so far as it relates to counts Nos. 1, 4, and 7, tocoot&in a sufficient description of the obpamphlet in thosecouqts Q'lentioned. . I am lwwever, that, if .counts Nos. 2, 8, 5, 6, 8, and 9 are bad because they do not contain an adequate description of the two obscene papers or circulars in those counts referred to, then, inasmuch as the court permitted such papers' to be read to the jury, and inasmuch as they were only admissible under the defective counts, such evidence may have prejudiced the finding on counts 1, 4, and 7, aud in that event the motion for a new trial as to the latter counts may be tenable. It seems necessary, thertlJfore, to determine whether any of the counts are defective by reason of an insufficient. de$cription of the indecent papers or circulars on which the counts are founded. It is manifest that an indictment under 'section 3892 for'depoSiting an obscene publication or print in the mail-ought to describe the publication 01' print so deposited, in such manper, at least, that the accused may be able to prepare his defense; and th'af the judgment may be pleaded in bar of another prosecution for offimse. Anal,legation that a publication complained of.ls tooindeeent to be spread on the record, merely obviates the neceasityof setting out the contents of-the. publication in full, as would other'Wise be reqUired. It does not excuse the pleader for wholly omitting to describe jt"orfol' describing it in language too general to advise the accused what particular publication or paper is intended. U. S. v. Harmon, 34 Fed. Rep. 872.: The second count of the' present indictment, whjch,may takeJ;l as a sample of all the counts supposed· to be defective, .on November 22,,1:888, the defendant deposited in the post-office at the city of St. Loui'S,u a ,certain obscene ... ... ... paper,
print, and publication, of an indecent character, then and there beginningwith the words following,to-wit: 'As there is life thete is hope,' and then and there contained in a paper wrapper having thereon, * * following:' Mr. W. E. Deer, then and there, the address Bluff Mills, Ind., via Waveland;' but which paper is so obscene and indecent as to be offensive,"e.tc. As the papers, when produced at the' trial, proved to be circulars that had evidently been prepared by the defendant with a view of obtaining patients, by circulating them through the mails, there can be no doubt that the description of them contained sufficiently' advised the defendant of the character and in the would be produced by the pros6C;l,Ution; contents of the document and in view of the fact that the caption of the papers was properly deto whom they had scribed, and that the name and address of the been respectively mailed, and the date of mailing, was also stated, ,it does not appear to the court that the defendant will have any in future in showing for what particular offense he has been tried urider the present indictment. It is no doubt true that the pleader might have given a further description of the two circulars complained of in the alleged defective counts; He might have stated the general tenor of the same, as that they contained a list of questions to be answered by the parties to whom they Were mailed, etc.; but,even if he haq done so, it is qliestionable whether the identlflcationofthe papers would. have been any more certain. It would still be open to the defendant tosay, as he says now, that the general description given might apply 'as well to other circulars or papers as to those produced at the trial, and hence that the indictment did not advise him how to prepare his defense. In: the nature of things, there could be no complete identification of documents such as are involved in this case, unless they had been copied in full into the indictment; butthe rule of pleading in :this class of cases did not require that to be done. In point of fact, the defendant crav:ed oyerot papers before the trial, and the court compelled the district torney to produce and file the same for the defendant's inspection. It is obvious, therefore, that the defendant was not put to any actual disadvantage in making his defense, as he was permitted to inspect the alobscene papers some days prior to the trial. Although the court expressed some doubt as to the sufficiency of the description of these circulars, when the point was firl'lt raised, yet, on further consideration of the question, I think the description was adequate, and that the motion in arrest and: for a'new 'trial! should be overruled as to all the counts. It is so ordered.