United States v. Harmon

• Decision Date: 01 March 1891
• Citation: 45 F. 414
• Parties: UNITED STATES v. HARMON.
• Court: U.S. District Court — District of Kansas

45 F. 414

UNITED STATES v. HARMON.

United States District Court, D. Kansas.

March, 1891

This is an indictment for depositing an obscene publication in the United States post-office in violation of the provisions of section 3893, Rev.St.U.S., (25 St. p. 496.) The prosecution grew out of the following state of facts: The defendant is the editor and publisher of a newspaper at Valley Falls Kan., entitled "Lucifer, the Light Bearer." It is a paper of singularity. The issue in question is dated "February 14, E.M. 291." It begins its date from 1st of January, 1501, which he calls the beginning of the era of man. Its platform or motto is: "Perfect freedom of thought and action for every individual within the limits of his own personality. Self-government the only true government. Liberty and responsibility the only basis of morality." The paper contains some general news and advertisements, but its specialty is the discussion of sexual relation, and a portrayal of its excesses and abuses. As side-boards to this matter, it teems with homilies and essays on the liberty of individual conscience, and the liberty of speech and of the public press. On the date above given which is, according to the common calendar, the 14th of February, 1890, this paper contained an article of over a column, headed, "A Physician's Testimony," purporting to be written by one "Richard V. O'Neill M.D.," of 330 East Seventieth street, New York. This communication sets out with much particularity various instances falling within his professional experience and practice of abuses of women by their husbands in coercive cohabitation; of family habits of men, boys, and girls gratifying an unnamable propensity of the father, and the unnatural intercourse between a man and beasts. These acts are described in blunt, coarse terms, too indecent and filthy to be here given in hæcverba. The pleader, however, has set the whole article out in exact words in the indictment. At the trial the government and defendant waived a jury, and submitted the case to the court to try both the questions of fact and law. It was admitted that the defendant placed the newspaper containing this publication in the United States postoffice for transmission to the party to whom it was directed, knowing that it contained this communication. It was also admitted that the defendant has about 1,500 regular subscribers to this paper, embracing heads of families, scattered through the state and elsewhere in the United States. The defendant was permitted to testify as to his motive in publishing such articles, for the purpose of showing, as claimed by his counsel, that he was actuated solely by a purpose to improve the sexual habits, to correct its abuses, and thereby better the human race; and that in all other relations of life he bore a good character as a peaceable, well-conducted citizen. He is a married man, living in wedlock with his second wife, having been divorced from the first. He is now about 60 years of age.

J.W. Ady, U.S. Dist. Atty., and P.L. Soper, Asst. U.S. Dist. Atty. David Overmeyer, for defendant.

PHILIPS J.

Objection to the Indictment. Both at the hearing and on the argument of the law and the facts objection was made to the sufficiency of the indictment. The court might, perhaps, with propriety pass upon this objection here, but it is always best that a case should be determined according to well-settled rules of procedure. At common law, objection to the sufficiency of the indictment must be taken prior to trial by motion to quash or demurrer. If not then interposed, it must come after trial by motion in arrest. 1 Whart.Crim.Law, (7th Ed.) §§ 519, 524, 525. While under the Code of this state the sufficiency of the petition or pleading in civil cases may be raised on the trial by objecting to the introduction of any evidence in support of it, it has been expressly held by the supreme court of Missouri, under a similar Code, that this rule of practice has no application to criminal proceedings. State v. Risley, 72 Mo. 609.

The Constitutionality of the Act of Congress. It is next objected that the act of congress under which this indictment was founded is in contravention of the first amendment of the federal constitution, which declares that "congress shall make no law * * * abridging the freedom of speech or of the press." Counsel has urged this objection with such force and vigor of reasoning as to entitle it to serious consideration under other conditions than those which exist. The constitutionality of the act in question has been affirmed by the court of last resort in the case of Ex parte Jackson, 96 U.S. 727. It is true, the direct question there presented was as to that branch of the statute denying the use of the mails to lottery circulars, etc.; but the opinion of the court proceeds on the theory that the provision of the statute respecting lotteries is so closely allied to that declaring obscene literature non-mailable matter that it must rest upon the same principle, and thereupon proceeds to discuss the latter feature of the statute, and to uphold its constitutionality. Until overruled, this decision must control the action of this court. In view, however, of the fact that the defendant places so much stress along the line of his entire defense on the liberty which should be accorded to the press, it may as well be said here as elsewhere that it is a radical misconception of the scope of the constitutional protection to indulge the belief that a person may print and publish, ad libitum, any matter, whatever the substance or language, without accountability to law. Liberty in all its forms and assertions in this country is regulated by law. It is not an unbridled license. Where vituperation or licentiousness begins, the liberty of the press ends. While the genius of our institutions of government accords the largest liberality in the utterance of private opinion, and the widest latitude in polemics, touching questions of social ethics, political and domestic economy, and the like, it must ever be kept in mind that this invaluable privilege is not paramount to the golden rule of every civilized society, sic utere tuo ut non alienum lædas,--"so exercise your own freedom as not to infringe the rights of others or the public peace and safety." 2 Story Const. § 1888. While happily we have outlived the epoch of censors and licensors of the press, to whom the publisher must submit his matter in advance, responsibility yet attaches to him when he transcends the boundary line where he outrages the common sense of decency, or endangers the public safety. As said by that eminent jurist, Judge Story, (Id. §§ 1884-1887:)

"There is a good deal of loose reasoning on the subject of the liberty of the press, as if its inviolability were constitutionally such that, like the king of England, it could do no wrong, and was free from every inquiry, and afforded a perfect sanctuary for every abuse; that, in short, it implied a despotic sovereignty to do every sort of wrong without the slightest accountability to private or public justice. Such a notion is too extravagant to be held by any sound constitutional lawyer, with regard to the rights and duties belonging to governments generally or to the state governments in particular. If it were admitted to be correct, it might be justly affirmed that the liberty of the press was incompatible with the permanent existence of any free government. * * * In short, it is contended that the liberty of the press is so much more valuable than all other rights in society that the public safety, nay, the existence of the government itself, is to yield to it? It would be difficult to answer these questions in favor of the liberty of the press without at the same time declaring that such a license belonged and could belong only to a despotism, and was utterly incompatible with the principles of a free government."

In a government of law the law-making power must be recognized as the proper authority to define the boundary line between license and licentiousness, and it must likewise remain the province of the jury--the constitutional triers of the fact--to determine when that boundary line has been crossed.

The Test of Obscenity, etc. The language of the statute (section 3893, p. 496, 25 St. at Large) is as follows:

"Every obscene, lewd, or lascivious book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character, * * * are hereby declared to be non-mailable matter, and shall not be conveyed in the mails, nor delivered from any post-office, nor by any letter carrier; and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, anything declared by this section to be non-mailable matter, and any person who shall knowingly take the same, or cause the same to be taken, from the mails for the purpose of circulating or disposing or aiding in the circulation or disposition of the same, shall," etc.

The statute does not undertake to define the meaning of the terms "obscene," etc., further than may be implied by the succeeding phrase, "or other publication of an indecent character." On the well-recognized canon of construction these words are presumed to have been employed by the law-maker in their ordinary acceptation and use. As they cannot be said to have acquired any technical significance as applied to some particular matter, calling, or profession but are terms of popular use, the court might perhaps with propriety leave their import to the presumed intelligence of the jury. A standard dictionary says that "obscene" mean "offensive to chastity and decency; expressing or presenting to the mind or view something which delicacy, purity, and decency forbid to be exposed."...