United States v. Davidson

Decision Date30 August 1917
Citation244 F. 523
PartiesUNITED STATES v. DAVIDSON.
CourtU.S. District Court — Northern District of New York

Dennis B. Lucey, U.S. Atty., of Ogdensburg, N.Y.

Benj. P. Wheat, of Saratoga Springs, N.Y., for defendant.

RAY District Judge (after stating the facts as above).

For the purposes of the demurrer and of determining the sufficiency of the indictment, assuming the facts stated to be true, on the 21st day of April, 1917, the defendant, at Saratoga Springs, N.Y., and within the Northern District of New York deposited in the post office for mailing a letter inclosed in a post-paid envelope, duly addressed and directed to Mrs ., and which letter or writing reads as follows:

'You have'nt stoped him from takeing the lady out have you? Just as soon as the bastard is old enough to understand I'll write her a full account of her prostitute mother and believe me I won't leave out anything not even the proof and just as soon as I know and address that will reach Fred without your geting it first I'll send him a letter that will tell him a few things about you that he don't know and if I know of your geting acquainted with any one I'll tell them about you to. It ought to be satisfaction enough to know that you are tied for life to a man that is ashamed of you and someone else is giving you just what you gave Mrs. Martin only you have to stand for it. She did not first-- he asked her to mary him-- you made him marry you. She had money and could do as she liked, you can't. She had decent friends and a name back of her-- all you have is a bunch of prostitutes and bastards. So Ruby you keep on digging and stay out of sight and I'll keep telling your history to any one you get acquainted with also Fred and his friends.'

The second count charges the deposit in the post office April 12 1917, of a post-paid envelope, with contents, on the outside of which envelope was written the following: 'Mrs. W. Martin, Pros., Care Mrs. Freeborn, 14 Walworth Street, City. ' The letter or abbreviation, if it be such, 'Pros.,' followed the name of the addressee, and was placed about three-fourths of an inch therefrom. By reason of its location, it was calculated to attract attention. 'Pros.' was undoubtedly intended as an abbreviation, and when we read the letter inclosed and the subsequent letter sent the addressee, April 21, 1917, we must reasonably conclude what was intended by the one who addressed the envelope. The proof on the trial would undoubtedly show that the letters 'Pros.,' so written on such envelope, were intended by the writer thereof as an abbreviation of the word 'prostitute,' but without such knowledge gained by reading the two letters the reader of such words and letters 'Pros.' on such envelope would have no means of knowing or forming a correct conclusion as to their meaning, except such as is warranted by reference to out dictionaries of the English language. The Century Dictionary defines 'Pros.' as 'an abbreviation of prosody,' and also 'Pros.' as 'a prefix in words of Greek origin or formation, meaning 'to,' 'towards,' 'before,' etc. ' This is familiar knowledge to the close student of English and also to those who have studied the Greek language. Of itself, 'Pros.' does not suggest, even remotely, anything either indecent, lewd, lascivious, obscene, libelous, scurrilous, or of a defamatory character. Taking and applying the ordinary and natural meaning to this abbreviation found on this envelope, and the addressee was described as a singer, or speaker, with modulation of voice, especially as to tone or accentuation, or as one versed in the science or quantity of syllables and pronunciation as affecting versification. See 'Prosody,' Century Dictionary. The di-derivatives of napthaline are 'sometimes distinguished by prefixes, as 2.6 amplin, 2.7 pros.,' etc. See Webster's New International Dictionary.

The question then arises, does it constitute an offense against the statute (section 212, Criminal Code) to place on an envelope an abbreviation known to the writer and to the recipient of the inclosed letter, as disclosed by the contents of such letter to the recipient thereof and to no one else, to charge immorality, etc., but which abbreviation to all others would have only a proper, innocent, and even flattering signification? I think not. This envelope is attached to, is referred to in, and forms a part of, the second count of the indictment and speaks for itself. The letter inclosed in such envelope is neither attached to, nor referred to in, the indictment. There is no allegation in the indictment that the abbreviation 'Pros.' had other than its ordinary meaning as generally understood and defined in the dictionaries, or that it had any other meaning as understood by the writer and by the person to whom addressed. While the indictment charges in count 2 that the words or letters 'Pros.' on the envelope were of an indecent, lewd, lascivious, obscene, libelous, scurrilous, and defamatory character, etc., the envelope itself, which forms a part of this count of the indictment, shows that they were not of that character, but innocent in and of themselves, and as generally understood and according to their ordinary and natural and well-defined meanings. Section 212 of the Criminal Code (U.S.) reads as follows:

'All matter otherwise mailable by law, upon the envelope or outside cover or wrapper of which, or any postal card upon which, any delineations, epithets, terms, or language of an indecent, lewd, lascivious, obscene, libelous, scurrilous, defamatory, or threatening character, or calculated by the terms or manner or style of display and obviously intended to reflect injuriously upon the character or conduct of another, may be written or printed or otherwise impressed or apparent, are hereby declared nonmailable matter, and shall not be conveyed in the mails nor delivered from any post-office nor by any letter carrier, and shall be withdrawn from the mails under such regulations as the Postmaster-General shall prescribe. Whoever shall knowingly deposit or cause to be deposited, for mailing or delivery, anything declared by this section to be nonmailable matter, or shall knowingly take the same or cause the same to be taken from the mails for the purpose of circulating or disposing of or aiding in the circulation or disposition of the same, shall be fined not more than five thousand dollars, or imprisoned not more than five years, or both.'

I think that, to be nonmailable, the delineations, epithets, terms, or language on the envelope must, of itself or of themselves, be of an indecent, lewd, lascivious, obscene, libelous, scurrilous, defamatory, or threatening character, or of themselves calculated, by the terms or manner or style of display thereon, and obviously intended, to reflect injuriously upon the character or conduct of another. It would seem that a statute of this character, to prevent the abuse or improper use of the United States post office establishment and mails, is intended for the protection of the government and general public and not the redress of private grievances. In United States v. Jarvis (D.C.) 59 F. 357, the address on the envelope was 'Room 32, Pease House, Front St., City. The Notorious;' and it was held that this was not defamatory per se, and not calculated to reflect injuriously on any one, whether referring to the addressee of the letter and envelope or to the Pease House or Hotel. The judge said:

'From the style of the superscription it is not obvious that the words 'The Notorious' were intended to characterize the person addressed, or any person. On the contrary, the Pease House would appear to have been intended to be designated as 'The Notorious.' But, assuming that the epithet applies to the person addressed, the words themselves do not necessarily reflect injuriously. Applied to a person without notoriety, they are meaningless. A man may be a notorious wit. Those who possess and exercise superior powers as orators, singers, or actors gain celebrity, and the holders of exalted positions are referred to as noted persons. Applied to persons of such character, the epithet would be considered by those acquainted with their reputations as being in bad taste, but not as implying any bad imputation.'

So here the abbreviation 'Pros.' is not obviously intended to reflect injuriously upon the character or conduct of any person or persons. The injurious and slanderous meaning concealed from the general public and unknown to it, and only known to the writer and recipient of the envelope and inclosed communication, cannot bring the case within the statute quoted.

The second count of this indictment is insufficient to charge an offense, and as to same the demurrer is sustained and the count dismissed.

Returning to count 1 of the indictment, we have a private letter sent under seal through the post office to the addressee, and which letter says, referring to some one's chile 'Just as soon as the bastard is old enough to understand, I'll write her a full account of her prostitute mother, and,' etc. Later it refers to the husband, and states he is ashamed of this mother; and, later, referring evidently to the first wife, says: 'She had decent friends and a name back of her. All you have is a bunch of prostitutes and bastards. ' This communication starts off with, 'You haven't stopped him from taking the lady out have you? It is impossible to tell certainly who 'the lady' referred to is or who 'him' is. The language I have quoted plainly imputes want of chastity to a woman, the addressee I think, by stating her child is a bastard, a child begotten and born out of wedlock, and that the mother is a prostitute, one who gives herself to promiscuous sexual intercourse. This, if published,...

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  • United States v. Roth
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 18, 1956
    ...the moral sense, morally depraving and debasing.'" This is in substance what Judge Cashin charged here. See also United States v. Davidson, D.C.N.D.N.Y., 244 F. 523, 534, 535; Sunshine Book Co. v. Summerfield, D.C. D.C., 128 F.Supp. Hence, having in mind Judge Hand's admonition in United St......
  • Duncan v. United States
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    • March 9, 1931
    ...and that whether or not it had such tendency was a question for the jury." (Citing numerous cases to which we refer.) In U. S. v. Davidson, 244 F. 523, 529, the District Court of the Northern District of New York had under consideration a letter charging the addressee with certain immoral c......
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    • July 2, 1959
    ...errors. [1] Commonwealth v. Lick, 146 Pa.Super. 435, 22 A.2d 616. [2] United States v. Clarke, D.C.1889, 38 F. 732; United States v. Davidson, D.C.1917, 244 F. 523. [3] Swearingen v. United 1896, 161 U.S. 446, 16 S.Ct. 562, 40 L.Ed. 765; United States v. One Book Entitled Ulysses, 2 Cir., 1......
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