¶11. Mails — Obscene Matter — Sealed Envelope.
¶2Since Rev. St. § 3893, relating to mailing nonmailable matter, was amended by the insertion of tlie word “writing,’’ all writings, whether inclosed under a sealed envelope or not, signed or unsigned, that are of an obscene, lewd, or lascivious character, are nonmailable matter, and covered by the statute.
¶32. Same — Publication oe Writing.
¶4Inclosing an obscene, lewd, or lascivious writing in a sealed envelope, and mailing it to another, constitutes a publication of the writing, within the meaning of the statute.
¶5At Law.
¶6This was an indictment under section 3893, Rev. St. U. S., for mailing obscene writings. There were three counts, each charging defendant with “depositing in the mail of the United States, for mailing and delivery, a certain obscene, lewd, and lascivious writing, purporting to be a letter,” etc., “which said writing is so lewd, lascivious, and obscene that the same would be offensive to the court here, and improper to be placed upon the records thereof, which said writing then and there was inclosed in a letter envelope, said letter being then and there addressed,” etc. A motion was made to quash the indictment on the ground that the obscene, lewd, and lascivious expressions were not set forth in the indictment, which motion was overruled by the court. Defendant thereupon entered a plea of “Guilty,” and moved for arrest of judgment — First, on the ground that the statute did not include private communications which were sent under cover of a seal, such as letters, etc., but was intended to embrace only such matter as was classed under the head of publications, such as circulars, etc., which were sent subject to the scrutiny of postmasters, and to be detained by them in case of their being determined to be nonmailable matterj and, second, *411that the sending of such letters did not constitute a publication of the writings therein inclosed.
¶7Jame» A. Connolly, U. S. Dist. Atty., and Edward Roe, Asst. U. S. Atty., for the United States.
¶8John M. Palmer and James (1 Robinson, for defendant.
¶10(orally.) Since this statute has been amended by the insertion of the word “writing,” I am of opinion that all writings, whether inclosed under a sealed envelope or not, signed or unsigned, that are of an obscene, lewd, or lascivious character, are non-mailable matter, and covered by the statute. As to the question raised regarding what eons!ilutes a publication, 1 shall hold that to inclose an obscene, lewd, or lascivious writing in a sealed envelope and mail it to another is a publication of that wilting, and would place it within the power of the party receiving the letter to institute a prosecution for the offense.