.'(Ptstrlct Oourt, lV.I). Virgtnia. April 18;1892.)
INDICTMENT-VALIDITy-PRYOR REFUSAL TO INDICT.
The fact theta grand jury has ignored an indictment bnot a bar to the subsequent Qf a true. bipfor the same offense.
Under Rev.St. § 8$98,88 amended by Aot Cong.l888,25 St. p. 496, an obscene letter. sealed. or unsealed,is. nOllmailable, the provision that no person shall open sealed matter not addressed to himself bein¥' a suffioient proteotion to private correspondenoe. Inre WllhiLl, 42 Fed. Rep. 822. Iollowed. A·letter from a man ,to, an unmarried woman. proposing a olandestine trip to a neighbOring returri'tbe next mornhlll', be to pay ber expenses and five dol· .Jar. QQllildes· .is obscene letter within the meaning of the aot making such matter . llonll\aiJab1e, altbough .no words whioh are of themselves obscene. ;" Obscene," within the lIl8Bning of the act, is that whioh is oJrensive to chastity U.S. v. ,Elarmpn,.45 Fed. Rep. 414, followed.
LE:rTBB, J;>E'INED. ,
.A.t'LaW. IndictOlent-0fGeorge W. Martin for Olailingobsceneletters inviolapon()f Rev. St.,§S893. Heard ou OlotiQu to quash and demurrer. .Overruled. '. o. ' V.S, Atty·. , ParriB, ford,efendant.
PAUL, .,Ill this case the defendnnt moves toqu8sh the indh:tmeqt,ontlle .groundtijat'it was found by a grand jury of this court at a grand jury .of this court at 8 court lU 1891, had rl'ported the indictment "npt held at a true I ,flo. not this motion can be sustained either by the 9r,.bytlll3.doctrine generally held by the Amer'the doctrint;l in this state and the olher American states is ican that the, 19I,loringof aniij<jictment by one grand jury is no bar to asubsequelll the charge ami finding au fo,r tbe ,"It. .Ulan be committed for a crime, no bill \:Ie Hit be thrown 'out by the grand jury, so bYp,roclamation,. he is still liable to be ipdicted, that he though . up a. !3econd bill, after anignoram1t8, is an extreme act of prerogaotive, subjecttq the revision of the court. * * *" Whart. Crim.PI. § 446.. The, defendant also demurs to the indictment on the grounds: ,. Pir8t, that the sending of an obscene, lewd, and JnsciHous letter Ut1Qeuefll through the mail, is nol anofJEmseunder section 3893 of the' Revised Statutes of the United States. as amended by the act of approved September 26, 1888, under which the indictment in this case was drawn; 8econd, that the le:tters on which this indictment is based are not obscene, lewd, and lasc'ivious within the meaning of the statute. The court will consider these objections in the order in which they are made. Prior to the enactment by congress (September 26, 1888) of the amended act on this I:lul>ject, the word" letter" was not embraced
·UNI:rED STATES tl.
within its provisions. The statu.te (section 3893) provided that every obscene,lewd, or lascivious book, pamphlet; picture, paper, writing, print, or other publication of an indecent character should be nonmailable. On the construction of this statute the decisions of the courts touching a sealed letter of an obscene, lewd, otlascivious character sent throug1;l.the mails were by no' mell-ns harmonious. The difference in the decisions in the United States courts arose over theconstr:uction of the word "writing." A number oLthe decisions held that the word "writing" did not embrace private letters. An equal or perhaps greater held that it was the intentioI;l of congress to emnumber tbe hrace .within the meaning of the word "writing" letters of an obsl1ene, lewd, or lm;civious character, written by one person to another, as private correspondence. Of the C8,.ses the court has examined bearing on this question the following held that the term "writing" did not embrace Private letters: U. S. v. Willialll8,3 Fed. Rep. 484; U. S. v. Loftis, 12 Fed. Rep. 671; U. S. v. Comerford, 25 Fed. Rep. 902; U. S. v. Mathia8, 36 Fed. Rep. 892. On the other band, the following decisiops held tbat private letters Wf,re embraced by the statute within the term "writing:" U. S. v. Morris, 18 Fed. Rep. 900; U. S. v. Ga.ylord, 17 Fed. Rep. 43$i 'U. S. v. Hanover, Id. ,444; U. S. v. Britton, Id. 731; U. S. v. ThomaJI) 27. Fed. Rep. 682. In tbis (:onfused and conflicting condition of ,the decisions of the courts congress unuertook, in the amendeu act of· September 26, 1888, to legislate again upon this subjecl, and in the amended act inserted the word "letter," the omission of which in the former statute had given rise to the contradictory decisions above referred to. Congress, at the time of the passage of the arnend\'1d act, had before it the history of the former statute and the conflicting decisions of the courts made as to the proper construction of the word" writ.ing" as employed il1 that act, whether or not this term embraced private letters. A careful reading of the decisions on the original statute convinces the court that the conflict in these decisions grew out ofthe omission in that statute (Jf the word "le'tter," and that if this term had been found in the original statute the decisions would have heen uniform. It is obvious, the· conrt thinks, that hi the amended· act. of September 26, 1888, it was the purpose of congress to put this question at rest, which it did by' the insertion of the word "letter." And this view is strengthened by a recent decision of the SQpreme court, in which, after adverting tothe cQJ,1trarietyof opinions as theword "writing" in tne statute pefore it was 8,.mended embraced the word "letter," and, deciding that question in the 'negative, the court add that "if further argument were needed In support of our view it will be found, we think, in the fact that in an amendment to this statute, passed September, 26, 1888, (25 St. p. 496,) for the first time in the history of the postal service the word 'letter' was included in the list· of articles made 'nonmailable' by reason of their obscene, lewd, drotheri'ise improper charaGler." U.$. v. 135.U. '25/5, 10 Sup. Qt. Rep. The ,r.onclusion atwhich the cO,urt has arrive,d is sUlJtam.ed by the opinion in Re WahU, 42 Fed. Rep. 822:
'''In 'my: said the learned judge in the case cited... since the ameildmellt'C?fl:'eptember 26: 1888, there can be no reasonable doubt that congl'El8!t,o}l;ll\tJ)l expressed its intention to ex.clude obscene letters, whether or unsealed. I;t in terms included an obscene letter, withprivate out and struck out of section 3893 th,e former clause in referencetolette1'll the envelopes of which obscene epithets, etc., were printed Itprbvided for guarding the sanctity and securitJ of private coror responde[lOO byapl'ovisioll that nO sealed letter should be opened by any per· son n'cept twtlone. to wholD.,addressed, but in no doubtfuUanguage declares '" · I think no one caf\ fullow the I egisan lation,fI'Q'In 187,2 up to September 26. 1888,witbout being con vinced that con'pll,rgethe United States mr.tl, and as far as possible frOlU bilcoming a vehicle .for the transmission of obscene, indecent, and '
tQ,'tbe position taken bycounse!' for the defendant regaitf 'tp.'the, inviolab,ility of 'correspondence, no matter what its may Qe, if .cOllducted !?y sealed, letters, is found in theoplW9u'of the suprenie court of the United States in ReJackson, 96 U. FI:ELD, spellking for the court, said: in to ?stabliS!lpost offices and post roads has th,e of the g?yernment,.to authorIze 'nbt'Mel'eIY ,the deSIgnation of the route$ over WhIch tbe Inall shall be cariied"iiiJd"the OlHces where letters arid othtlr documents shall be received to be :d i&triblltf'd,or, fOrW8l"Ued, but the carriage of the 'mail and all measures necessary to: Sellureits safe and speedy transit and tbe prompt delivery of its contents. legialation prescribing what should be Carried · ., been .. The power possessed by congress of tbe' entire postal system of the c04ntry. 'I.'he right to desigril\te'what shall be carried necessarily involves tbe right to determine what shllilbe excluded. · · · In excludinj;( various articles from the roall, the ob,ject'of congress has not been to interfere with the freedom of the pt'ells, orjwith-any other rights of the people, but to refuse. its facilities for disLriblltiq!1i!)f matter to the public morals. Also. in tgevery ot the same court, not yet officially reported. in. what are known'asthe.'1Qttery cases:'" Ex parte Rapier, 12 Sup. Ct. Hep. 374; l1oTner'ff; U. S;,'Id. 407. '
,The secoqcfground of ill that the letters on which this in· 4ictment, wasf?un(]. are not Qbscene, lewd, or lascivious, or of an indecent chai:a,cter, within the meaning of the The letters in question ' .
'.'October '12,18Ql :Mrs.. 'Worley Dear Madame I write to know If you will take a trlp to' :LyDcbburgwlth tne thura4ay. I willpay your expenses and pay you $5.00'besides. W:C'willleaveon day train and niturn next morning. lam not a'stran'ger to you. but we must keep this a profound Secret. If yOIl will go let me knoW' by Wednesday and 1 will tllke the trainon this side and Y,011 get 011 iJ! Just drop your letter in a \:lox on this side If yOIl will go I will promise and direct to O. ;I1allville Va. you a nice tin:ie YourI'! fondJy." ' '. ' " , ' : ' ..... " (No.2.) "My Dear Mrs. WorleyYoul' nottirticeived You are entirely'mistaken in the man. Whilst I have seen 'you' often I have never spoken a half doz. words to you. I have always admired you and have had a great desire to be with
· ,... (No. 1.)
·'HARMAN tI. UNITED STATES.
you. and I write again and beg that you take the trip with me to Lynchburg. Say we will start Friday and come back Saturday. I know you will be greatly surprised when you find out who I am but I trust you will be agreeably so. Please write in the morning before ten o'clock and me in the affirmative.Now please do this for me and you will contribute so much to my happiness. I know you will never regret it. I am Yours devotedly 0." The court will define very briefly the meaning of the words "obscene, lewd, and lascivious, and of an indecent character," as employed in this statute. A very clear definition of "obscene" is "that which is offensive to chastity and modesty." U. S. v. Harmcm, 45 Fed. Rep. 414. In U. S. v. Clarke, 38 Fed. Rep. 732, THAYER, J., says: "The word' obscene' ordinarily means something which is offensive to chastity, something that is foul and filthy, and for that reason is offensive to a pure-minded person." These definitions were given to the word in question as applied to books, pamphlets, pictures, writings, and other publications which were named in the statute before it was amended; and since the insertion of the word "letter" in the amended statute the same definitions should unquestionably be given to the same word as applied to private letters also. Taking these definitions and applying them to the letters on which this indictment was found, the court cannot see how any other construction can be put upon them than that they are obscene within the meaning of the statute. The expressions. used in the letters can leave no doubt as to their lewd and lascivious character. It is difficult to conceive what can be m'ore shocking to the modesty of a chaste and pure-minded woman than the proposition contained in these letters. It is no less thana proposition from a married man to an unmarried woman, proposing a clandestine trip to the city of Lynchburg for a grossly immoral purpose. The motion to quash the indictment and the demurrer are overruled.
HARMAN t1. UNITED STATES.
Court, D. Kansas. .Tune 1S. 189J.)
MAILING OBSCENE LETTER-CoNSTITUTIONAL
LAw. Rev. St. § 8898, as amended by Act Congo July 12, 1876, (19 St. p. 00,) problbiting the mailing of obscene papers, is not in contravention of the first amendment to the federal constitution, providing that the freedom of the press shall not be abridged. Ex parte Jackscm, 96 U. S. 727) and fi]x parte RapWr, 12 Sup. Ct. Rep. 874, 148 U. S. 110, followed. 45 Fed. Rep. 414, affirmed.
SAME-SENTENOE-OMISSION 011 HARD LABOR.
Where a person convicted of mailing obscene papers is sent to the penitentiary, a failure to .sentence him to hard labor, as required by Rev. St. 5 881J8, 18 a fatal error, for which the judgment wlll be reversed.
In Error to the United States District Court for the District of Kansas. Indictment of Moses Harman for mailing obscene papers. Verdict of Jruilty. and sentence thereon. Reversed.