50 F. 921 (D.Kan. 1892), Harman v. United States

Citation50 F. 921
Party NameHARMAN v. UNITED STATES.
Case DateJune 13, 1892
CourtUnited States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 921

50 F. 921 (D.Kan. 1892)

HARMAN

v.

UNITED STATES.

United States Circuit Court, D. Kansas.

June 13, 1892

Page 922

David Overmeyer, for plaintiff in error.

J. W. Ady, U.S. Dist. Atty.

CALDWELL, Circuit Judge.

On the 9th day of April, 1888, the plaintiff in error was indicted in the district court for depositing on the 18th day of June, 1886, in a post office, for mailing, an obscene paper, in violation of section 3893 of the Revised Statutes of the United States, as amended by act of congress approved the 12th of July, 1876, (chapter 186, 19 U.S.St.p. 90.) He was tried before a jury, found guilty, and sentenced to 'be imprisoned in the Kansas state penitentiary for five years, and that he pay a fine of three hundred dollars;' and thereupon the defendant sued out this writ of error under the act of congress approved March 3, 1879, (chapter 176, 20 U.S.St.p. 354.) The chief contention of the learned counsel for plaintiff in error is that the act of congress on which the indictment is founded 'contravenes the first amendment to the constitution of the United States, which provides, among other things, that the tuition of the United States, which provides, among other things, that the freedom of the press shall not be abridged, and is, therefore, unconstitutional and void. ' If authority can ever silence contention, the constitutionality of this act of congress is no longer open to discussion. Ex parte Jackson, 96 U.S. 727; Ex parte Rapier, 143 U.S. 110, 12 S.Ct. 374. There is, however, a fatal error in this case on the fact of the record. The act of congress provides that persons convicted of its violation 'shall be deemed guilty of a misdemeanor, and shall for each and every offense be fined not less than one hundred dollars nor more than five thousand dollars, or imprisonment at hard labor not less than one year nor more than ten years, or both, at the discretion of the court. ' It will be observed that where the punishment, or any part of it, is imprisonment, it must be 'at hard labor.' The plaintiff in error was sentenced to 'be imprisoned in the Kansas state penitentiary for five years,' and hard labor is not made a part of the punishment, as the statute requires shall be done, where imprisonment forms any part of the sentence. When the statute makes hard labor a part of the punishment, it is imperative upon the court to include that in its sentence. Ex parte...

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26 practice notes
  • 85 F.2d 202 (D.D.C. 1936), 6617, De Benque v. United States
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (District of Columbia)
    • 11 de Maio de 1936
    ...pages 256-257, 14 S.Ct. 323, 325.) Perhaps the most extreme illustration of this rule is in the case of Harman v. United States (C.C.) 50 F. 921. There the defendant, under a statute which authorized a fine and imprisonment at hard labor, was sentenced merely to fine and imprisonment. The s......
  • The dilemma of mental state in federal regulatory crimes: the environmental example.
    • United States
    • Environmental Law Vol. 25 Nbr. 4, September 1995
    • 22 de Setembro de 1995
    ...requiring a stamp. Id. at 896-97. (73) E.g., United States v. Harmon, 45 F. 414 (D. Kan. 1891), rev'd on other grounds, 50 F. 921 (1892). In Harmon, the defendant was charged with the felony of "depositing an obscene publication in the United States post office." Id. at 414. The d......
  • 126 F.Supp. 398 (S.D.Cal. 1954), 16449, Bonica v. Olesen
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Court (Southern District of California)
    • 22 de Novembro de 1954
    ...and corrupt those whose minds are open to such immoral influences, United States v. Harmon, 10 Cir., 45 F. 414, reversed on another ground, 50 F. 921; whatever is impure, unclean, indecent, foul, filthy, or disgusting, United States v. Smith, 7 Cir., 45 F. 476; matter having a tendency to d......
  • 37 S.W. 938 (Mo. 1896), State v. Van Wye
    • United States
    • Missouri United States State Supreme Court of Missouri
    • 1 de Dezembro de 1896
    ...This view of the constitutionality of the federal law was affirmed on error by the circuit court of the United States in Harman v. U. S., 50 F. 921, upon the authority of Ex parte Page 940 Jackson, 96 U.S. 727, 24 L.Ed. 877, and In re Rapier, 143 U.S. 110, 36 L.Ed. 93, 12 S.Ct. 374. Similar......
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25 cases
  • 85 F.2d 202 (D.D.C. 1936), 6617, De Benque v. United States
    • United States
    • Federal Cases United States Courts of Appeals United States Court of Appeals (District of Columbia)
    • 11 de Maio de 1936
    ...pages 256-257, 14 S.Ct. 323, 325.) Perhaps the most extreme illustration of this rule is in the case of Harman v. United States (C.C.) 50 F. 921. There the defendant, under a statute which authorized a fine and imprisonment at hard labor, was sentenced merely to fine and imprisonment. The s......
  • 126 F.Supp. 398 (S.D.Cal. 1954), 16449, Bonica v. Olesen
    • United States
    • Federal Cases United States District Courts 9th Circuit United States District Court (Southern District of California)
    • 22 de Novembro de 1954
    ...and corrupt those whose minds are open to such immoral influences, United States v. Harmon, 10 Cir., 45 F. 414, reversed on another ground, 50 F. 921; whatever is impure, unclean, indecent, foul, filthy, or disgusting, United States v. Smith, 7 Cir., 45 F. 476; matter having a tendency to d......
  • 37 S.W. 938 (Mo. 1896), State v. Van Wye
    • United States
    • Missouri United States State Supreme Court of Missouri
    • 1 de Dezembro de 1896
    ...This view of the constitutionality of the federal law was affirmed on error by the circuit court of the United States in Harman v. U. S., 50 F. 921, upon the authority of Ex parte Page 940 Jackson, 96 U.S. 727, 24 L.Ed. 877, and In re Rapier, 143 U.S. 110, 36 L.Ed. 93, 12 S.Ct. 374. Similar......
  • 37 P. 854 (Okla. 1894), In re McClaskey
    • United States
    • Oklahoma Supreme Court of Oklahoma
    • 8 de Setembro de 1894
    ...of his contention. Ex parte Lange, 18 Wall. 163; State v. Cooper, 13 N. J. Law, 375; Com. v. Loud, 3 Metc. (Mass.) 328; Harman v. U. S., 50 F. 921; Ex parte Friday, 43 F. 919; In re Feeley, 12 Cush. 598. The distinction sought to be made, and the argument offered to sustain this new doctrin......
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1 books & journal articles
  • The dilemma of mental state in federal regulatory crimes: the environmental example.
    • United States
    • Environmental Law Vol. 25 Nbr. 4, September 1995
    • 22 de Setembro de 1995
    ...requiring a stamp. Id. at 896-97. (73) E.g., United States v. Harmon, 45 F. 414 (D. Kan. 1891), rev'd on other grounds, 50 F. 921 (1892). In Harmon, the defendant was charged with the felony of "depositing an obscene publication in the United States post office." Id. at 414. The d......