·'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.
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" Oq thE! ..day oC4:pnl,J8$8,I.the plaintiff in errol'.· wtltI,indieted.in,the for the 18 .110, p.ost,pffice, fq,rmlliling, an obscene paper, in ()f ,the ,Statutes of the 'United States, as congressapprovedtl,1¢,l.2th of July, 1876, (chapter 186, 19 p. He 'Vas) tried and sentenced to "beimpl,'isoned ln' the penitentIary for five years, pay.a fine and thereupon the defendantau,ed 'Qut this writ of congreS$ approved March 3, 1879, (chapter 176,20 U. S. St. p. 354.) The·chief.contention.ofth13 .learnEliC,i ,cpunlilet rQr err()r the act of congress on which tile, inl¥Qtlllent.is:found"4 to the consti1), among things, that the frej:}Qm:p,pf ,pot . ,and iil, therefore, unconstiaed vohl."· contention, thE.> constitutiQ.n!ll.. i.b."'·.,Pf.Jhis . q(,mg.ress..\.s. . open to discussion. parte.Jacl;eon, 96. U. S, Rq,pwr, 143 U. S. 110, 12 Sup. Ct. Re.p·. There in t4is case on the face oithe . . The. act9f congressprpvides that persons convicted of its violatioI,l of, 110;; miSdemeanor, and. shall for each and of!ens.ebe not less than hundred dollars nor more or at not less than .one yt>ar,upr. 010re thal1ten. years, orbotp" at the gJSCretlOn of the .It that.wberEl orany part ont, is ,it must. at. bard The, plaintiff inertor was sentenced to "be imprisoned in the Kansas state' pen,itentiary fot five years," and hard labor is not made a part of the punIshment, as'the statute requires shall be done, where imprisonment forms any part of the sentence. When the statute makes bard labor a part of the punishment, it is imperative upon the court to include that in its sentence. Exparte Kar8tendick, 93 U. S·· ,; Inthecoqrts of t4e United States the rule is that a judgment in a criminal case must conform strictly to the statute, and that !lny variations from its·. ,in the character or extent of the punishment inflicted, renders the judgment absolutely Graham,IS8 U. S. 461, U Sup. Ot. ReP::863;Ji;;parteLUnge,18 re MilUl, U. s. 263,10 ·. 762; 4;i ,)!'?d.Rep. 477. A different rule prevails in some of lhestlites, (In,reJfcDonald, H Wis. 450, 43N. W. ;89 N. this subj6j;lt prevlubA8::ln Ii'. state,; by statute 'or JUdlClal declSlon, has no force in the federal courts administering. criminal justice under the constitution and laws of the United SLates. In those courts the doctrine <Wtn(fUnitedStlites ontliissubject is of paramount 'lJt"aeemsprobablethat, if plaintiff in error had sought relief from the void sentence after SUffering apart of the punishment by
habenscorputl, his discharge would have been absolute and final, and he could not have been again sentencedor tried for the offense. EX parte Lange,' 18 Wall. 163; ..Rep.477. 'Assuming, but not deciding, that his dischargeon habeas corputl. after suffering part of the puniahmerit under the void sentence, would have precluded the Imposition of a legal sentence upon the verdict ofguilty , or another trial for the same offense, it does not follow that a reversal of such a sentence on a writ of error sued, out defendarit himself is attended with any such consequences. See Ex parte Lange,18 Wall. 173, 174, and pages 197, 198; 1 Bish..Crim. Law, §§ 1023, 1025. But this aspect of the case has not beeu and no opinion is expressed upon it. If the defendant conceives that a legal sentence cannot now be imposed upon him on the existing verdict of guilty, and that he cannot again be tried for the same oftEmse, he can raise these questions in the trial court. The judgment of the district court of the United States for the district of Kansas, i8 rilversed, and the cause remanded to that court with instructions to proceed therein according to law.
UNITED STATES tI. RAGAZZINI.
(CircuU Cou.rt. 8. D. Nf1W Yor1c. AprU 4, 1892.)
Under Rev. St. § 5424, it is a criminal ofreos8 to sell a certificate of naturaUzatlon to other than the person to w/lom it wasissued, and it is immaterial that such ceJ:'o tificate vras fraudulently procured, by misrepresentation to the oourt., or that it was forged, if prima facie and apparently valid.
At Law. Indictment of Guido Ragazzini for selling naturalization papers in violation of Rev. St. § 5424. Verdict of guilty. Heard on motion in arrest of judgment and lor new trial. Motion denied. Edward MitcMa, Diat. Atty., and Mr. Mott, Asst. Dist. Atty., for the United States. KeUogg. Ro86 & Smith, for defendant.
BROWN, District Judge. The defendant wae indicted and on trial convicted, under section 5424 of the Revised Statutes, for the ofllmse of selling "to a person other than the person for whom it was originally issued, a certificate of citizeqship, or certificate showing any person to be admitted a citizen." On trial it appeared that the certificate referred to in the first count of the indictment was issued by the superior court of this city, a common law court of competent jurisdiction in naturalization proceedings, and was as follows: "UNITED STATES OF AMERICA, STATE OF NEW YORK
"E Plu.ribus Unum.
City and Cot/ill-ty of New York-ss,.: "Be it remembered that on the 22nd day of October, tn.tbe year of our Lord . one thousand eight hundred and ninety-one, Angello Cordello appeared