United States v. Smith

• Decision Date: 23 March 1891
• Citation: 45 F. 476
• Parties: UNITED STATES v. SMITH.
• Court: U.S. District Court — Eastern District of Wisconsin

45 F. 476

UNITED STATES v. SMITH.

United States District Court, E.D. Wisconsin.

March 23, 1891

Elihu Colman, U.S. Dist. Atty.

J. V Quarles, for defendant.

JENKINS J.

The defendant demurs to an indictment preferred under Rev. St Sec. 3893, as amended by 25 St. 496. The indictment contains two counts; the first charging that the defendant knowingly deposited in a certain post-office, for mailing and delivery an obscene, lewd, and lascivious pamphlet, entitled 'A Monitor for Men,' a copy of which is attached to the indictment. The second count embraces a similar charge respecting a paper entitled 'Questions for Men Only,' also attached to the indictment. It is insisted that neither of these documents is obscene within the meaning of the statute. The pamphlet set forth in the first count of the indictment purports to be a printed medical treatise touching certain foul private diseases, and their cure, issued by one 'Gun Wa,' claiming to be a 'Chinese graduate of botany.' The introduction states that it is presented for the consideration of the American public, and to be intended for promiscuous circulation. The document embraced within the second count of the indictment purports to be issued by 'Gun Wa, Chinese Physician,' and consists of 120 printed questions, touching some 7 private diseases. They are to be answered by any one afflicted with any of such disorders, after he shall have read the pamphlet set forth in the first count.

It was claimed at the argument, and conceded by the attorney for the government, that the defendant is entitled to take the opinion of the court by demurrer whether the matter set forth was or was not obscene. That would seem to be the rule in England, but is one not followed in this country. Ordinarily it is a question for the determination of a jury. But it is within the province of the court to construe the objectionable document so far as necessary to decide whether a verdict establishing its obscenity would be set aside as against evidence and reason. U.S. v. Bennett, 16 Blatchf. 338; U.S. v. Clarke, 38 F. 500. The test was laid down by Chief Justice COCKBURN in Reg. v Hicklin, L.R. 3 Q.B. 360: Is the tendency of the matter charged as obscene to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall? That test is applied to the statute under which this indictment is framed. U.S. v. Bennett, supra; U.S. v. Wightman, 29 F. 636; U.S.V. Bebout, 28 F. 522. The purpose of the statute was to purge the mails. Congress, possessing the power of exclusion, declines to permit the mail to become a vehicle for the transmission and circulation of mental filth. To that end the statute should receive a liberal interpretation, consistently with recognized rules of construction. The words 'obscene,' 'lewd,' and 'lascivious,' as employed in the statute are not used interchangeably. 'Obscene' has a broader signification than 'lascivious,' comprehending whatever is impure, unclean, indecent, foul, filthy, or disgusting. It is said of this pamphlet that it is a medical treatise without illustration, and, with a possible exception, expressed in clean and wholesome language. In an able...