United States v. Journal Co., Inc.

• Decision Date: 05 June 1912
• Citation: 197 F. 415
• Parties: UNITED STATES v. JOURNAL CO., Inc.
• Court: U.S. Court of Appeals — Fourth Circuit

197 F. 415

UNITED STATES v. JOURNAL CO., Inc.

United States District Court, E.D. Virginia.

June 5, 1912

L. L Lewis, U.S. Atty., and R. H. Talley, Asst. U.S. Atty., both of Richmond, Va., for the United States.

S. S P. Patteson and James H. Price, both of Richmond, Va., for defendant.

WADDILL District Judge.

This case grows out of the report of the trial of the celebrated Beattie Case, which took place in the county of Chesterfield adjoining this city, during the late summer of last year. Henry Clay Beattie, Jr., was indicted, tried, and executed for the murder of his young wife. The crime was committed while on an automobile ride, at night, over a country road near to their residence, some five weeks after the birth of their first child. The supposed motive for the crime was his infatuation for a young woman of dissolute character, with whom he had from time to time maintained improper relations. Both Beattie and his wife were prominent in the community, of large and most worthy family connections, and the murder and subsequent trial attracted wide-spread attention. In fact, it may be said to have been one of if not the most noted of the state's criminal trials, certainly so far as the publicity given to it throughout this and other countries was concerned. The leading papers of the United States teemed with accounts of the murder, and particularly of the proceedings and the trial, which lasted for weeks, and the interest in and excitement over the same was very great; the local newspapers devoting much space thereto for months.

The indictment contains two counts. The first charges that the defendant on a certain day unlawfully and knowingly did deposit in the post office at Richmond, Va., for mailing and delivery, a certain obscene, lewd, and lascivious publication, to wit, a publication known as the Richmond Evening Journal, Extra No. 5, dated August 28, 1911, the objectionable parts of said publication being headed 'Beattie's Nemesis,' and 'Latter Part of Mother's Recital,' said publication being alleged to be too obscene, lewd, and lascivious to be properly placed upon the records of the court. The only material difference between the first and second counts is that the latter charges the publication to be of an 'indecent character.' The defendant company moved to quash the indictment, and also demurred thereto, and, in obedience to a subsequent order of the court, entered upon the motion of the defendant (Rosen v. United States, 161 U.S. 29, 40, 16 Sup.Ct. 434, 480, 40 L.Ed. 606), a bill of particulars was furnished by the government to the defendant. Upon the filing of the bill of particulars, the defendant renewed its motion to quash, insisting that no offense as charged had been committed, and that the insertion of the articles complained of was clearly within the rights of the defendant as the publisher of a daily newspaper, and that plainly neither in the publication, distribution, or mailing of the same had there been any violation of the statute covered by the indictment respecting the improper use of the mails of the United States.

The question of the character of the contents of the paper-- namely, whether it comes within the inhibited class named in the statute-- is one ordinarily to be determined by the jury under appropriate instructions from the court-- that is, when there is such doubt as to the meaning and effect of the same that persons would reasonably differ in respect thereto. But, on the other hand, if the publication complained of be such that it could not by any reasonable judgment be held to come within the prohibition of the law, then it becomes the duty of the court as matter of law to pass upon the same. Knowles v. United States, 170 F. 409, 411, 95 C.C.A. 579, and cases cited; United States v. Dempsey (D.C.) 188 F. 450. This right of the court to determine whether the particular writing or publication comes within the purview of the statute by appropriate instructions at the trial seems uncontroverted, and was clearly recognized in Swearingen v. United States, 161 U.S. 446, 16 Sup.Ct. 562, 40 L.Ed. 765, where the lower court instructed the jury as to the character of the paper, holding the same to be within the provisions of the statute, which the Supreme Court reversed, taking the contrary view of the paper. The authority of the court to pass preliminarily upon the meaning and effect of language used in writings under indictments of this character, where the objectionable matter is not copied in the indictment, may be said not to be entirely free from embarrassment, since a demurrer, for instance, cannot be interposed for the purpose, because the alleged obscene matter is not a part of the record. Dunlop v. United States, 165 U.S. 486, 491, 17 Sup.Ct. 375, 41 L.Ed. 799. But this difficulty does not arise upon the motion to quash and the filing of the bill of particulars thereunder. A motion to quash is much broader and less technical, and is addressed to the sound discretion of the court (United States v. Rosenberg, 7 Wall. 580, 583, 19 L.Ed. 263); and in considering the same, with a view of reaching a just conclusion, matters dehors the record or not strictly a part of the record may be considered (Bishop, Crim. Pro. Secs. 758, 759, 761, 762, 763). Every reason would seem to indicate that relief should be afforded preliminarily, as well as at the trial, in a proper case, since the accused is clearly entitled to make his defense by preliminary motion, as well as by plea of not guilty, and motion in arrest of judgment (Rosen v. United States, 161 U.S. 29, 30, 16 Sup.Ct. 434, 480, 40 L.Ed. 606, supra), and...