UNITED STATES v. JANES. (District Court, S. D. California. ;\Iarch 9, 1896.)
VIOLll.TIO::-< OF POSTAL LAWS-OBSCENE MATTEI!.
Certain printed matter set forth in the itHlictment, being an article entitled "Ripe and Unripe Women," and a drug-gist's advertisement, addressed in part to the "Ladies of the District," held to be obscene matter, within the meaning of Rev. ::;t. § 38l.lR The inclosing of a newspaper, containing obscene matter, in a wrapper, does not prevent the mailing thereof from falliI:g under tlle denunciation of the statute.
MATTER-INCLOSING 1:-1 WHAPl'EItS.
SA:UE-PREPADlENT OF POSTAGE.
Prepayment of the postage on obscene matter de.posited in the mails is not a constituent of the offense created by the statute. An allegation that defendant "did deposit, find cause to be deposited," obscene matter in the mails, is not such duplicity as vitiates an indictment.
This was an indictment in two counts against J. F. Janes, for violation of Rev. St. § 3893, by mailing a newspaper containing obscene matter. 'fhe case was heard on demurrer to the indictment.
'l'he first count was based on an article entitled "Ripe and Unripe 'Vomen." The article was setout in full in the indictment, and contained, iu suggestive language, a description of the physical appearance of the "Ripe 'Voman," and of the writer's idea of the thoughts excited thereby in the beholders; alSo. a description, in coarse, rude terms, of the "Ulll'ipe 'Vomall," with a reference to unnatural practices and crimes, as among the causes of her condition. The second count was upon a druggist's advertisements, one of which extolled the merits of a certain remedy for velwreal diseases, while the other was addressed to the "Ladies of the Tenderloin District," and called to their attention the writer's stock of a certain line of foods.
,George J. Denis, U. S...Atty. Calvert Wilson, for defendant. WELLBORN, District Judge. This is a demurrer to the indictment. The grounds of demurrer are: First, that the publication, set forth in the indictment is not obscene, nor otherwise in violation of section 3893 of the Revised Statutes of the United States, under which said indictment was found; second, that the indictment alleges that the newspaper containing the publication was inclosed in a wrapper; third, that the indictment does not allege prepayment of postage; fourth, that the indictment is duplicitous, in charging that the defendant "did deposit, and cause to be deposited," etc. These grounds I will take up in their order. L The printed matter set forth in the indictment falls, I think, under the denunciation of said section, as construed and applied in adjudicated cases. Among those cases are the following: U. S. v. Bennett, 16 Blatchf. 338, Fed. Cas. No. 14,571; U. S. v. Britton, 17 Fed. 7:31; U. S. v. Wightman, 29 Fed. G36; U. S. v. Chesman, 19 Fed. 497; U. S. v. Harmon, 45 Fed. 414; U. S. v. Smith, rd. 476; U. So v. Martin, 50 Fed. !H8. 2. As to the effect of inclosing the newspaper in a wrapper, the law, I think, is correctly expounded by Judge Ross, in the case of v.74F.no.4-3.)
74 FEDERAL REPORTER.
U. So v. Andrews, 58 Fed. 861. See, also, U. S. v. Martin, 50 Fed. 918; U. So v. Nathan, 61 Fed. 936; U. S. v. Ling, Id. 1001. Following these cases, I hold that the inclosure of the newspaper in a wrapper does not, other things being sufficiently alleged, prevent the case from falling under the denunciation of said section. 3. Prepayment of postage is not a constituent of the offense charged in the indictment. U. S. v. Lynch, 49 Fed. 851. 4. To allege that the defendant "did deposit, and cause to be deposited," etc., is not such duplicity in pleading as vitiates the indictment. U. S. v. Hull, 14 Fed. 324; 1 Bish. Cr. Proc. §§ 434, 435; U. S. v. Stone, 49 Fed. 848; U. So v. Fero, 18 Fed. 901. The objections urged to the indictment are, in mJ' opinion, un· tenable; and the demurrer is overruled.
UNITED STATES v. L:IES et al. (Circuit Court of Appeals, Second Circuit.
CUSTOMS ADMINISTRATIVE ACT-PRACTICE-REVIEW OF ApPRAISERS.
May 12, 1896.)
DECISION OF GENERAL
When the board of general appraisers, upon the protest of an importer against a collector's classification of imported merchandise, has sustaine\l .such protest in one particular, and in all others affirmed the collector's decision, and the importer has thereupon duly applied to the circuit court for a review of the questions involved, no statement of errors being filed by the government, the court cannot, upon the importer's conceding that there was no error in the decision of the board of general appraisers, proceed to review that decision, so far as favorable to the importer, but must affirm it as it stands.
Appeal from the Circuit Court of the United States for the Southern District of New York. Henry C. Platt, for the United States. Wm. Wickham Smith, for appellee. Before WALLACE, and SHIPMAN, Circuit Judges. LACOMBE, Circuit Judge. A certain importation of leaf tobacco was classified for duty by the collector at the port of New York,certain portions at 75 cents per pound, and certain other portions at 35 cents per pound. The importers, being dissatisfied with such decision, did, within the proper time, in compliance with the provisions of section 14 of the customs administrative act of June 10, 1890, "give notice in writing to the collector, setting forth therein distinctly and specifically * * * the reasons for their objections thereto." The collector thereupon transmitted the invoice, and all the papers and exhibits connected therewith, to the board of general appraisers. That board in one particular sustained the protest of the importers, and in all other particulars affirmed the decisions of the collector. Being dissatisfied with the decision of the board, the importers applied to the circuit court for a review of the questions of law and fact involved in such decision, and filed, as the fifteenth section of the above-cited act requires, "a concise statement