Ackley v. United States
| Decision Date | 14 October 1912 |
| Docket Number | 3,740. |
| Citation | 200 F. 217 |
| Parties | ACKLEY v. UNITED STATES. [1] |
| Court | U.S. Court of Appeals — Eighth Circuit |
[Copyrighted Material Omitted]
W. W Calvin, of Kansas City, Mo., for plaintiff in error.
Leslie J. Lyons, U.S. Atty., of Kansas City, Mo. , for the United States.
Before SANBORN and HOOK, Circuit Judges, and McPHERSON, District judge.
The plaintiff in error, Foster E. Ackley, was indicted for furnishing information where and from whom articles could be obtained which would prevent conception. The indictment was in four counts; trial resulting in acquittals under all but the second count. The second count charges that the defendant for many years had been a practicing physician at Kansas City, Mo., advertising his profession in the papers of that city, which circulated in various parts of the country. George A. Leonard, a post office inspector, caused to be sent to the defendant at his business address in Kansas City, by means of the United States mail, posted in Arkansas City Kan., a letter of date December 5, 1910, purporting to have been written by Mary Eichenoner. After stating that the writer had seen his advertisements the letter recites:
Mary Eichenoner.'
Two days thereafter, at Kansas City, Mo., the defendant, in response to the letter referred to, deposited in the United States post office at Kansas City, Mo., for mailing and delivery through the post office establishment of the United States, an envelope, addressed to the said Mary Eichenoner at Arkansas City, Kan., which envelope contained a printed book or pamphlet and advertisements describing the 'Ackley Ladies' Syringe' and 'Dr. Ackley's Sanitary Powder.' This pamphlet has a picture of a woman standing by a door, as if about to open the same, above which is printed in large letters, 'The Door to Health,' and below it the words:
On the back of the pamphlet is a picture of an image, entitled 'Billiken-- the god of things as they ought to be. ' Below this image are the words:
'A new lease of life is granted to womankind who use the Ackley Ladies' Syringe and Dr. Ackley's Sanitary Powder.'
This count also charges that February 20, 1911, the said Leonard, post office inspector, did address another letter at Arkansas City, Kan., requesting further information as to where, how, and from whom, and by what means articles and things designed, adapted, and intended for the preventing of conception might be obtained. This letter is as follows:
Mary Eichenoner, 'R.F.D. No. 6.'
The indictment further alleges that February 27, 1911, at Kansas City, Mo., defendant deposited in the United States post office another letter addressed to the said Mary Eichenoner, Arkansas City, Kan., which letter is as follows:
'Dr. F. E. Ackley, Diseases of Women, 318 Junction Building, Kansas City, Mo.
Feb. 27, 1911.
'Mary Eichenoner, Arkansas City, Kansas-- Dear Madame: In reply to your favor of the 20th, enclosing remittance of $3.50, will say that I am sending to your address, by to-day's Pacific Express Company, one of my patented ladies' syringes, as per your request. In the package sent I enclosed two sample packages of my Sanitary Powder, which I will kindly ask you to try and I am confident that you will be more than pleased with the results. You will find directions on the small packages as to how to use this powder. Only instead of following the directions as given on the package, I want you to use a teaspoonful of the powder to 8 oz. or one-half pint of water (which is the amount the bulb of my syringe will hold), instead of one quart of water as directed on the package. The directions on the packages are intended for use when my powder is used with some other kind of syringe besides my own. Study directions for use of my syringe thoroughly and by so doing you will find it very simple and easy to understand.
Should you desire the powder I can send it to you by mail at any time. The large full size boxes cost $1.00 each.
In addition there was an allegation that defendant did by such circular and letter carried through the mails furnish information where a prevention against conception could be procured. But much of the indictment we omit as not being material. The defendant filed against the indictment a demurrer, and likewise a motion in arrest of judgment after verdict, substantially on the ground that the indictment fails to state the crime.
This particular offense was not known at common law. Being a statutory crime, the indictment must follow the statute creating the offense. The exception is that, if the statute denounces several things as a crime, the different things thus enumerated in the statute being connected by the disjunctive 'or,' the pleader must connect them by the conjunctive 'and' before evidence can be admitted as to more than the one act. To recite that the defendant did the one thing or another makes the indictment bad for uncertainty. To charge the one thing and another does not render the indictment bad for duplicity, and a conviction follows if the testimony shows the defendant to be guilty of either the one or the other thing charged. State v. Dean, 44 Iowa, 648; State v. Spurbeck, 44 Iowa, 667; State v. Paul, 81 Iowa, 596, 47 N.W. 773.
If the crime charged existed at common law, and is denounced by name only by statute, then the indictment must contain averments covering the common-law ingredients. If the crime is statutory, the indictment is sufficient if the averments are in the language of the statute, unless generic or general or common-law terms are used, in which case the indictment must be more specific, so that a defendant of ordinary understanding may comprehend what is charged. Armour Packing Company v. United States (C.C.A. 8th Circuit), 153 F. 1, 82 C.C.A. 135, 14 L.R.A. (N.S.) 400 (affirmed in 209 U.S. 56, 28 Sup.Ct. 428, 52 L.Ed. 681); Pounds v. United States, 171 U.S. 35, 18 Sup.Ct. 729, 43 L.Ed. 62; Dunbar v. United States, 156 U.S. 185, 15 Sup.Ct. 325, 39 L.Ed. 390; Evans v. United States, 153 U.S. 584, 14 Sup.Ct. 934, 38 L.Ed. 830; Cannon v. United States, 116 U.S. 55, 78, 6 Sup.Ct. 278, 29 L.Ed. 561. It can be truly said that this indictment is not a model for either brevity or terseness or exactness of statement. Instead of using the words of the statute, in some instances the pleader has used alleged synonyms, reciting things not in the statute, omitting others, and using alleged substitutes.
It is contended that there is no allegation that the defendant sent the circular or pamphlet as furnishing information where the articles and things designed to prevent conception might be obtained. We think the proper construction of that allegation is that it was so charged. The indictment alleges that the defendant did, in response to the letter of the inspector of December 5, 1910, mail the circular. The second letter, which was written February 20, 1911, by the inspector, reminded the defendant that there had been no...
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