209 F. 119 (S.D.N.Y. 1913), United States v. Kennerley

• Citation: 209 F. 119
• Party Name: UNITED STATES v. KENNERLEY.
• Case Date: December 01, 1913
• Court: United States District Courts, 2nd Circuit, Southern District of New York

Page 119

209 F. 119 (S.D.N.Y. 1913)

UNITED STATES

v.

KENNERLEY.

United States District Court, S.D. New York.

December 1, 1913

Page 120

John Neville Boyle, of New York City, for the United States.

John L. Lockwood, of New York City, for defendant.

HAND, District Judge (after stating the facts as above).

It seems to have been thought in U.S. v. Bennett, 16 Blatch. 338, 351, Fed. Cas. No. 14,571, that in an indictment of this sort the question whether the case must go to the jury could be raised in advance of the trial by inspection of the book, after it had been made a part of the record, by bill of particulars. However, in Dunlop v. U.S., 165 U.S. 486, 491, 17 Sup.Ct. 375, 376 (41 L.Ed. 799), the Supreme Court said that the book does not ever become a part of the record, and that therefore, 'if the indictment be not demurrable upon its face, it would not become so by the addition of a bill of particulars. ' The same rule is laid down in U.S. v. Clarke (D.C.) 38 F. 500. It is a little questionable in my mind whether Mr. Boyle's consent that the book should be considered as a part of the indictment really effects any more than if it had been produced by bill of particulars. However, as the result from any point of view is the same, I have considered the case as though the book had been set out in extenso.

Whatever be the rule in England, in this country the jury must determine under instructions whether the book is obscene. The court's only power is to decide whether the book is so clearly innocent that the jury should not pass upon it at all. U.S. v. Clarke (D.C.) 38 F. 500; U.S. v. Smith (D.C.) 45 F. 478. The same question arises as would arise upon motion to direct a verdict at the close of the case. Swearingen v. U.S., 161 U.S. 446, 16 Sup.Ct. 562, 40 L.Ed. 765, did not decide that the court is finally to interpret the words, but that matter was left open, because the instructions in any case misinterpreted the statute. The question here is, therefore, whether the jury might find the book obscene under proper instructions. Lord Cockburn laid down a test in Reg. v. Hicklin, L.R. 3 Q.B. 36, in these words:

'Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.'

That test has been accepted by the lower federal...