Dunlop v. United States

Citation165 U.S. 486,17 S.Ct. 375,41 L.Ed. 799
Decision Date15 February 1897
Docket NumberNo. 472,472
PartiesDUNLOP v. UNITED STATES
CourtUnited States Supreme Court

[Syllabus from pages 486-488 intentionally omitted] This was a writ of error to review the conviction of the plaintiff in error for unlawfully depositing and causing to be deposited, upon the days set out in the various counts, in the post office at Chicago, for mailing and delivery, a newspaper called the 'Chicago Dispatch,' containing obscene, lewd, lascivious, and indecent matter. There were 32 counts in the indictment. The district attorney, under order of the court, elected to proceed upon the first, sixth, twelfth, sixteenth, twenty-sixth, and thirty-second counts. The other counts were quashed, and no evidence was offered to sustain the first count.

The sixth count was as follows:

'And the grand jurors aforesaid under their oath aforesaid do further present that the said Joseph R. Dunlop, on the 6th day of July, in the year aforesaid, at Chicago aforesaid, in the division and district aforesaid, unlawfully did knowingly deposit and cause to be deposited in the post office of the said United States there, for mailing and delivery, a large number of copies, to wit, one hundred copies of a certain paper, print, and publication entitled 'The Chicago Dispatch,' one of which said copies was then and there directed to 'Mr. Montgomery,' at Chicago aforesaid; another to 'R. M. Williams, Box 801,' at St. Louis, Missouri, and the rest to divers persons, respectively, to the said grand jurors unknown; and each of which last-mentioned copies was then and there a copy of the five-o'clock edition of the day in this count aforesaid and number 840 of the said paper, print, and publication, and contained (amongst other things) on the eleventh page thereof, and under the headings of 'Personal' and 'Baths,' certain obscene, lewd, lascivious, and indecent matters in print, of too great length and of too indecent character to be here set forth in full, against the peace and dignity of the said United States and contrary to the form of the statute of the same in such case made and provided.'

The other counts differed from this only in the dates of the newspapers alleged to have been mailed, and the days upon which they were deposited in the post office.

The testimony introduced by the government tended to show that there was published in the city of Chicago, during the year 1895, and the three years immediately prior thereto, a daily and weekly newspaper entitled 'The Chicago Dispatch'; that the plaintiff in error, Joseph R. Dunlop, was the publisher of said newspaper during those years; that copies of the Chicago Dispatch in large numbers were deposited in the Chicago post office for mailing and delivery during said years, daily except Sunday; that the copies of the Chicago Dispatch described in the indictment as directed to 'Mr. Montgomery' at Chicago, and the copies of the Chicago Dispatch described in the indictment as directed to 'R. M. Williams, Box 801,' at St. Louis, Mo., were deposited for mailing and delivery at the post office in Chicago on the dates of said several copies; that all the copies of said Chicago Dispatch, so directed to said R. M. Williams and Mr. Montgomery, contained therein, under the headings of 'Personal' and 'Baths,' certain advertisements that were obscene lewd, lascivious, and indecent; and that the plaintiff in error, by reason of being the publisher of said Chicago Dispatch, was liable for the alleged depositing in said post office of said newspapers, so directed to said R. M. Williams and Mr. Montgomery.

Defendant was found guilty, and, after motions for a new trial and in arrest of judgment had been overruled, was sentenced to imprisonment to hard labor in the penitentiary for two years, and to pay a fine of $2,000 and costs.

Thereupon he sued out this writ, assigning 61 errors as grounds for reversal. These errors related to the refusal of the court, prior to the trial, to order the district attorney to file the printed matter, alleged to be obscene, or copies of the same; to the admission of improper testimony, including all the newspapers introduced; to the refusal of the court at the close of the testimony of the government to direct a verdict of not guilty; to prejudicial remarks made by the district attorney in his argument to the jury; to the giving of improper instructions; and to the refusal to give proper instructions requested on behalf of the plaintiff in error.

Wm. S. Forrest and A. H. Garland, for plaintiff in error.

Atty. Gen. Harmon and Asst. Atty. Gen. Dickinson, for the United States.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

In passing upon this case we shall notice only such errors as were pressed upon our attention in the argument or briefs or counsel.

1. The first assignment is to the alleged error of the court in overruling the motion of the defendant, made prior to the trial, to require the district attorney to file the printed matter alleged in the indictment to be obscene, lewd, lascivious, and indecent, for the purpose of enabling the defendant to demur to the indictment. Defendant's petition for this order states as the reason for it that, if the advertisements complained of were not filed, his counsel 'must investigate and critically examine' over 3,000 advertisements and notices, and that he would 'necessarily be confused and embarrassed,' and unable 'to make suitable preparations to sustain his defense.' It is nowhere stated that he desired it for the purpose of demurring to the indictment, and if it had been furnished it would not have been the subject of demurrer, since it is no part of the record. Com. v. Davis, 11 Pick. 432. If the indictment be not demurrable upon its face, it would not become so by the addition of a bill of particulars.

Beyond this, however, the application is one addressed to the discretion of the court, and its action thereon is not subject to review. Rosen v. U. S., 161 U. S. 29, 35, 16 Sup. Ct. 434, 480; Com. v. Giles, 1 Gray, 466; Com. v. Wood, 4 Gray, 11; State v. Bacon, 41 Vt. 526. While such applications are ordinarily, and should be, granted, wherever the accused is liable to be surprised by evidence for which he is unprepared, it is difficult to see how the defendant in this case was prejudiced by its refusal. The alleged obscene matter was contained in a published newspaper to which his own name was attached as proprietor, and of which he had in fact been the proprietor for several years, the days and editions of which were set forth in the several counts. He was duly informed upon the trial of what particular advertisements the government complained, and requested the court to charge the jury that they were not obscene, within the meaning of the law. He thus gained every advantage that he could possibly have had by the production of the advertisements prior to the trial.

2. The second and five other assignments of error are taken to the admission of the following advertisements of proprietorship, appearing in the several editions set forth in the indictment, upon the ground that there was no proof that the newspapers, from which they were taken, were copies of the Chicago Dispatch, and that they did not tend to show who was the publisher:

It is difficult to see how the identity of the paper, called the Chicago Dispatch, which the indictment averred that the defendant deposited in the post office for mailing, could have been more conclusively proved than by the production of a newspaper called the Dispatch, and purporting to be the official paper of the city of Chicago. In that particular the paper proved itself.

While the addition of the words 'by Joseph R. Dunlop,' might not have been, standing alone, sufficient evidence of his being the proprietor of the paper, and the cause of its being mailed, yet, in view of the fact that the name of the publisher usually follows the name of the paper in that connection, it certainly had a tendency in that direction, and was, therefore, admissible, particularly when it was shown by other testimony that defendant had stated that he was the proprietor and publisher of this paper; that a paper of this name had been for a long time printed and circulated by him; that it had for a long time and in large numbers passed through the post office; that he had negotiated for the renting of a building for the purpose of publishing a paper called the Dispatch; that he had conversations with witnesses in regard to the publication of a paper of that name; that, as proprietor, he had caused papers, similar to these, to be sent through the post office, and that the accounts for postage had been rendered to him.

3. The eighth assignment was taken to an alleged error in permitting the witness McAfee to testify that it was the duty of a certain messenger of the post-office inspector, whose office was in the post-office building a St. Louis, Mo., to take the mail from the post office, and distribute it in the private boxes of persons who had desk room in the inspector's office.

The thirteenth assignment was taken to a similar alleged error in permitting the witness Montgomery to testify that it was among the duties of a government employ e, not a mail carrier, to take from a table called 'the round table,' in the mailing department of the Chicago post office, a copy of the Dispatch, and deliver it to him in the office occupied by him as superintendent of mails in the government building at Chicago, and that it was in this way that the newspapers identified by Montgomery were received by him.

Each count in the indictment, upon which the trial was had, charged a mailing of the Dispatch to Montgomery at Chicago, as well as one to Williams, Box 801, at St. Louis.

Montgomery's testimony tended to show that he had been superintendent of the mails at the Chicago post office for six years past; had charge of the receipt and dispatch...

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