Knowles v. United States

• Citation: 170 F. 409
• Decision Date: 03 June 1909
• Docket Number: 2,917.
• Parties: KNOWLES v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

170 F. 409

KNOWLES v. UNITED STATES.

No. 2,917.

United States Court of Appeals, Eighth Circuit.

June 3, 1909

The defendant was indicted for a violation of section 3893 of the Revised Statutes (U.S. Comp. St. 1901, p. 2658), as amended which prohibits the use of the mails for the circulation of obscene writings. He publishes at Deadwood, S.D., a weekly paper called 'The Lantern.' The issue of March 30 1907, contained the following article, written by him:

'A good illustration of the beauties of our social system was recently given when 'society' in Lead and Deadwood was convulsed by the news that a most sweet and amiable young woman had died at Denver from the effects of an operation performed upon her to hide what society calls her 'shame.' And what was this thing which society blasphemously brands as 'shame'? Why, simply that an unmarried girl having disregarded the sanctions of some priest or magistrate, had made the discovery that God had worked in her the wonderful miracle of motherhood. So this poor girl, having been taught from infancy that such a thing constituted 'shame,' kills her unborn child and in so doing kills herself. That the father and mother of this murdered child were designed by nature for each other is proven by the fact that they could not resist their mutual attraction, even in the face of great social peril. Love had its way, and God blessed the union with the most stupendous fruit of the universe, a human child; and 'society' steps in and cries 'shame' and causes the mother to kill both herself and her child. It is a well established fact in physics as well as in history that there are no children so likely to be healthy, robust so mentally and bodily fit to survive as those very 'love children' who are killed in the wombs of foolish mothers driven to do the fiendish deed by 'society' and public opinion. Since the dawn of history, the great army of genius has been largely recruited from the ranks of illegitimates. Love's offerings have filled the earth with art, music, poetry, and wisdom, as if putting to shame those very ones who cry 'shame' and as taunting them with their own inferiority. Society is as guilty of the murder of this girl as though she had been put to death by the public hangman.'

The depositing in the post office of the paper containing this article is the offense alleged. The cause was submitted to the jury in a charge to which no exception has been reserved, and resulted in a verdict of guilty. The defendant challenged the sufficiency of the indictment by demurrer and motion in arrest of judgment.

Freeman T. Knowles and Robert C. Hayes, for plaintiff in error.

William G. Porter, Asst. U.S. Atty. (Edward E. Wagner, U.S. Atty., on the brief), for the United States.

Before ADAMS, Circuit Judge, and RINER and AMIDON, District Judges.

AMIDON District Judge (after stating the facts as above).

Upon this record, the only question before us is whether the article is obscene, lewd, or lascivious, within the meaning of the statute. If it was fairly open to the construction of falling within either of these classes, it was the plain duty of the court to submit the question of its character to the jury. In all indictments under this statute there is a preliminary question for the court to say whether the writing could by any reasonable judgment be held to come within the prohibition of the law. That is like the question of law in a case of negligence as to whether there is any substantial evidence of negligence.

It leaves a wide field for the sound, practical judgment of the jury to determine the true character of the writing and its probable effect upon the mind of readers. Whenever reasonable minds might fairly reach different conclusions as to the character of the writing, it is the duty of the court to submit the question to the jury. Rosen v. United States, 161 U.S. 29, 16 Sup.Ct. 434, 480, 40 L.Ed. 606; United States v. Bennett, 16 Blatchf. 342, Fed. Cas No. 14,571; United States v. Davis (C.C.) 38 F. 326; United States v. Harmon (D.C.) 45 F. 418. Looking at the article in question, we entertain no doubt that its character and effect were questions for the determination of the jury. It glorifies fornication, and places it under the blessing of God. It designates the offspring of such intercourse as 'love children,' and declares that the 'army of genius has been largely recruited from the ranks of illegitimates. ' Whether such language as this when presented to the minds of ardent youths and maidens would have a tendency to arouse impure and lascivious thoughts and desires, we should say was at least a question of fact for the determination of a jury. The defendant urges that his article contains a sincere discussion of an important social question, and that he was actuated only by the highest motives. He argued his case in person, and the impression which he made tended strongly to support this...