211 F. 916 (8th Cir. 1914), 4051, Clark v. United States

Docket Nº:4051.
Citation:211 F. 916
Party Name:CLARK et al. v. UNITED STATES.
Case Date:March 02, 1914
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 916

211 F. 916 (8th Cir. 1914)

CLARK et al.



No. 4051.

United States Court of Appeals, Eighth Circuit.

March 2, 1914

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George A. Bangs and Tracy R. Bangs, both of Grand Forks, N.D., (D. L. Nash and George R. Robbins, of Grand Forks, N.D., on the brief), for plaintiffs in error.

Edward Engerud, U.S. Atty., of Fargo, N.D. (M. A. Hildreth, Asst. U.S. Atty., of Fargo, N.D., on the brief), for the United States.

Before SANBORN and CARLAND, Circuit Judges, and RINER, District Judge.

CARLAND, Circuit Judge.

Clark and Crockard were indicted, tried, convicted, and sentenced in the District Court for the District of North Dakota on counts 2 and 25 of an indictment which charged them with violating section 245 of the Penal Code. That section, so far as material, was as follows:

'Whoever shall bring or cause to be brought into the United States or any place subject to the jurisdiction thereof, from any foreign country, or shall therein knowingly deposit or cause to be deposited with any express company or other common carrier, for carriage from one state * * * to any other state, * * * any obscene, lewd, or lascivious, or any filthy, book, pamphlet, picture, paper, letter, writing, print, or other matter of indecent character, * * * shall be fined not more than five thousand dollars, or imprisoned not more than five years, or both.'

Count 2 charged that Clark and Crockard on March 6, 1912, in the county of Burleigh, state and district of North Dakota--

'did willfully and knowingly unlawfully deposit and cause to be deposited with Northern Express Company (said express company being then and there a corporation engaged in the business of a common carrier), for carriage and transportation by said Northern Express Company from the city of Bismarck in the state of North Dakota to and into the several places and states hereinafter

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set forth, numerous copies of a certain lewd, obscene, lascivious, indecent, and filthy book, being a book or magazine commonly known and described as 'Jim Jam Jems by Jim Jam Junior,' for the month of March, 1912, said books so deposited for transportation being copies of the March, 1912, number, issue, or edition of a periodical, magazine, or publication which was in the year 1912 published by said defendants in the said city of Bismarck in monthly issues or editions and bearing the title and commonly known as 'Jim Jam Jems by Jim Jam Junior,' and which said books so deposited for transportation contained printed on the pages thereof, as defendants then and there well knew, a certain writing, essay, or article entitled 'Three Weeks in the Magic City,' and certain other articles and writings, all of which articles and writings were and are so obscene, lewd, lascivious, filthy, and indecent that they would be offensive to the court and improper to be here reproduced and spread upon the records of this court; that said books, when so deposited, were packed in several packages, each of which packages contained one or more of said books, and each of said several packages, respectively, were by said defendants then and there directed, consigned, and intended for transportation by said express company by and in interstate commerce to the respective places outside the state of North Dakota for delivery to the respective consignees, as follows, namely: To J. J. Casey, at Billings, in the state of Montana; to Monogram Cigar Company, at Aberdeen, in the state of South Dakota; to H. C. Compton, at Minneapolis, in the state of Minnesota; to Miss Loftus, at St. Paul, in the state of Minnesota; to Helen Faust, at Denver, in the state of Colorado; to L. Newman, at Great Falls, in the state of Montana.'

Count 25, in language similar to that in count 2, charged that the same defendants on September 9, 1912, at the same place, deposited for transportation in interstate commerce a book called the 'Semi-Annual Number of the Jim Jam Jems,' addressed to one M. E. Krelle, Chicago, Ill.

By demurrer and otherwise counsel for defendants challenged the power of Congress to enact the law alleged to have been violated, and an interesting argument has been presented to us in support of this...

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