211 F. 385 (6th Cir. 1914), 2505, Tyomies Pub. Co. v. United States

• Docket Nº: 2505.
• Citation: 211 F. 385
• Party Name: TYOMIES PUB. CO. et al. v. UNITED STATES.
• Case Date: March 03, 1914
• Court: United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 385

211 F. 385 (6th Cir. 1914)

TYOMIES PUB. CO. et al.

v.

UNITED STATES.

No. 2505.

United States Court of Appeals, Sixth Circuit.

March 3, 1914

Page 386

[Copyrighted Material Omitted]

Page 387

Nicholas Klein, of Cincinnati, Ohio, and W. A. Burritt, of Hancock, Mich. (J. I. Sheppard, of Ft. Scott, Kan. of counsel), for plaintiffs in error.

Fred C. Wetmore, U.S. Atty., of Grand Rapids, Mich., and E. J. Bowman, Asst. U.S. Atty., of Greenville, Mich.

Before KNAPPEN and DENISON, Circuit Judges, and DAY, District Judge.

DAY, District Judge.

The plaintiffs in error were convicted in the District Court of violations of section 211 of the Penal Code of the United States. The indictment contained three counts, but on the trial the first count was withdrawn and the jury was instructed that as to plaintiff in error John Salminen only the third count of the indictment should be considered.

The indictment in count 2 charged that the Tyomies Publishing Company, a corporation, and John Nummivuori, business manager of the corporation, did on the 24th of April, 1912, at the city of Hancock, Mich., knowingly and unlawfully deposit and cause to be deposited in the post office at Hancock about 3,000 copies of a publication known as 'Lapatossu,' printed in the Finnish language, containing a certain obscene, lewd, filthy, and indecent picture, identified in the indictment.

In count 3 the indictment charged that the Tyomies Publishing Company, and John Nummivuori, business manager, and John Salminen, editor, on the 13th of December, 1912, at Hancock, Mich., knowingly and unlawfully deposited and caused to be deposited in the post office about 3,000 copies of said publication 'Lapatossu,' containing a certain obscene, lewd, filthy, and indecent picture, identified in the indictment. Each of the pictures was identified by reference to the date of publication borne by the issue in which, and to the page thereof on which, the picture appears as well as by the dialogue connected therewith.

Pleas of not guilty were entered for each of the defendants; a motion to quash the indictment was overruled; and a motion to direct a verdict in favor of the defendants at the close of the government's testimony was overruled. The defendants were found guilty by the jury and sentence imposed. No exceptions were taken to the charge of the court, aside from the court's failure to charge certain requests submitted by the defendants.

It is urged that section 211 of the Penal Code is unconstitutional because it is an ex post facto law and because it abridges the freedom of the press. Section 211 was not enacted after the commission of the offense charged in the present case, nor has the situation changed in any respect to the disadvantage of the accused.

The section of the statute under consideration does not conform to the settled definition of an ex post facto law. Duncan v. Missouri, 152 U.S. 382, 14 Sup.Ct. 570, 38 L.Ed. 485; Thompson v. Utah, 170

Page 388

U.S. 351, 18 Sup.Ct. 620, 42 L.Ed. 1061; Kring v. Missouri, 107 U.S. 235, 2 Sup.Ct. 443, 27 L.Ed. 506.

The statute is not in derogation of the constitutional rights and privileges of the defendants as publishers of a daily newspaper. The constitutional guaranty of a free press cannot be made a shield from violation of criminal laws which are not designed to restrict the freedom of the press, but to protect society from acts clearly immoral or otherwise injurious to the people. Ex parte Jackson, 96 U.S. 727, 736, 24 L.Ed. 877; In re Rapier, 143 U.S. 110, 133, 134, 12 Sup.Ct. 374, 36 L.Ed. 93; Public Clearing House v. Coyne, 194 U.S. 497, 506, 24 Sup.Ct. 789, 48 L.Ed. 1092; Knowles v. United States, 170 F. 409, 411, 95 C.C.A. 579; United States v. Journal Co. (D.C.) 197 F. 415, 418.

It is urged that the statute does not prescribe a standard by which the crime can be ascertained.

With the addition of certain elements which do not vary the test to be applied, section 211 of the Penal Code is essentially the same as section 3893 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 2658), concerning which Mr. Justice Harlan, in the case of Rosen v. United States, 161 U.S. 29, 16 Sup.Ct. 434, 480, 40 L.Ed. 606, said:

'The inquiry under the statute is whether the paper charged to have been obscene, lewd, and lascivious was in fact of that character; and if it was of that character, and was deposited in the mail by one who knew or had notice at the time of its contents, the offense is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails. Congress did not intend that the question as to the character of the paper should depend upon the opinion or belief of the person who, with knowledge or notice of its contents, assumed the responsibility of putting it in the mails of the United States. The evils that Congress sought to remedy would continue and increase in volume if the belief of the accused as to what was obscene, lewd, and lascivious was recognized as the test for determining...