Clark v. United States

• Decision Date: 02 March 1914
• Docket Number: 4051.
• Citation: 211 F. 916
• Parties: CLARK et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

211 F. 916

CLARK et al. v. UNITED STATES.

No. 4051.

United States Court of Appeals, Eighth Circuit.

March 2, 1914

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 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 proposition. We do not, however, regard the question as an open one, in view of the decisions of the Supreme Court in Lottery Cases, 188 U.S. 321, 23 Sup.Ct. 321, 47 L.Ed. 492; Hoke v. United States, 227 U.S. 308, 33 Sup.Ct. 281, 57 L.Ed. 523, 43 L.R.A. (N.S.) 906, Ann. Cas. 1913E, 905; Reid v. Colorado, 187 U.S. 137, 23 Sup.Ct. 92, 47 L.Ed. 108; The Daniel Ball, 10 Wall. 557, 19 L.Ed. 999; Coe v. Errol, 116 U.S. 517, 6 Sup.Ct. 475, 29 L.Ed. 715.

It is also claimed that the law is an abridgment of the freedom of the press. We think that the freedom of the press has enough to answer for without making it a protecting shield for the commission of crime. Davis v. Beason, 133 U.S. 333, 10 Sup.Ct. 299, 33 L.Ed. 637; Knowles v. United States, 170 F. 409, 95 C.C.A. 579.

It was objected by demurrer that count 2 was bad for duplicity. This contention is based upon the fact that the alleged obscene matter was addressed to different parties, and that more than one copy of the book was deposited. The offense charged is the depositing of copies of an obscene, lewd, or lascivious book in the express office, to be transported in interstate commerce. The fact that these copies were addressed to different persons or that more than one copy was deposited would not render the count bad for duplicity. In Dunlop v. United States, 165 U.S. 486, 17 Sup.Ct. 375, 41 L.Ed. 799, it was alleged that the defendant at a certain time and place deposited and caused to be deposited 'a large number of copies, to wit, 100 copies, of a certain paper, print, and publication entitled 'The Chicago Dispatch,' one of which said copies was then and there directed to 'Mr. Montgomery,' at Chicago aforesaid; another to 'R. M. Williams, Box 801,' at St. Louis, Mo., and the rest to divers persons, respectively, to the said grand jurors unknown. ' Although this case was contested vigorously, no point seems to have been made that the counts upon which Dunlop was tried and convicted charged more than one offense. It is undoubtedly true that in the Dunlop Case the deposit of a single copy of the paper and in this case a single copy of the book could have been charged as an offense, but, where the copies are all deposited at the same time and place, the pleader may properly charge the depositing as a single offense. 1 Bishop, Cr. Proc. Sec. 436 et seq.; U.S. v. Nunnemacher, Fed. Cas. No. 15,903; U.S. v. Patty (D.C.) 2 Fed. 664; U.S. v. Ferro (D.C.) 18 F. 901; U.S. v. Scott (C.C.) 74 F. 213.

At the trial, in order to support the charge in count 2, counsel for the prosecution offered in evidence the title page or front cover of the book or magazine referred to therein. Counsel for defendants objected to the offer for the reason that the whole book or magazine was not offered; the objection was overruled and exception allowed. Counsel for the prosecution then offered the fly leaf of the same book or magazine. This fly leaf contained the following: 'Jim Jam Jems by Jim Jam Junior,' and 'Jim Jam Jems, will not be sent by mail. When ordering single copies include express charges in remittance, address Jim Jam Jems, Bismarck, N.D.' To this offer there was the same objection, ruling, and exception. Counsel for the prosecution then offered from page 31 of the same book or magazine the following language:

'Henry George once said, 'I am for men.' So is Jim Jam Jems, but we understand that women and preachers sometimes read it.'

To this offer there was the same objection, ruling, and exception. Counsel for the prosecution then offered a part of the article entitled 'Three Weeks in the Magic City,' and referred to in count 2 as being so obscene, lewd, lascivious filthy, and indecent as to be offensive to the court and improper to be spread upon its records. To this offer there was the same objection, with the addition that the whole of the article, which count 2 alleged made the book or magazine obscene, was not offered. The objection was overruled and exception taken. When the case was with the defendants, their counsel offered in evidence the whole book or magazine referred to in count 2. The offer was denied, and exception allowed. Counsel for defendants then offered all of the article en...