Timmons v. United States

• Decision Date: 08 February 1898
• Docket Number: 558.
• Citation: 85 F. 204
• Parties: TIMMONS v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

85 F. 204

TIMMONS v. UNITED STATES.

No. 558.

United States Court of Appeals, Sixth Circuit.

February 8, 1898

Plaintiff in error was indicted under section 3893, Rev. St., as amended by Act Sept. 26, 1888 (1 Supp.p. 621; 25 Stat. 496) providing: 'Every obscene, lewd or lascivious book or pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character * * * whether sealed as first-class matter or not, 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 * * * shall for each and every offense,' etc.

The first count in the indictment is as follows: 'First Count. The grand jurors of the United States of America, duly impaneled, sworn, and charged to inquire within and for the Western division of said district, upon their oaths and affirmations present that E. J. Timmons, whose first name is to the grand jurors unknown, alias Harry C. Morton, on, to wit, the nineteenth day of April, in the year of our Lord one thousand eight hundred and ninety-seven, in the county of Hamilton in the state of Ohio, in the circuit and Western division of the district aforesaid, and within the jurisdiction of this court, did then and there unlawfully and knowingly deposit, and caused to be deposited, in a post office of the United States, to wit, the post office at Cincinnati, Ohio, for mailing and delivery, certain nonmailable matter, to wit, a letter inclosed in an envelope, which said letter was obscene, lewd, and lascivious, and is unfit to be set forth in this instrument, and to be spread upon the records of this honorable court, said envelope containing said letter, as aforesaid, being then and there directed to Miss Mamie, 1081 Mound street, city; he, the said E. J. Timmons, first name unknown, alias Harry C. Morton, then and there well knowing the said letter to be obscene, lewd, and lascivious, as aforesaid, and the depositing and causing to be deposited of the same E. J. Timmons, alias Harry C. Morton, as aforesaid, being then and there contrary to the form of the statute in such case and made and provided, and against the peach and dignity of the United States of America. ' The second count was like the first, except in the date on which the letter is stated to have been deposited in the post office. The sufficiency of the indictment was raised-- First, by motion to quash; second, by demurrer; and, third, by motion in arrest of judgment. The omission in the indictment of the words contained in the statute, 'of an indecent character,' is the ground of the objection taken to the indictment. The motions and demurrer were overruled by the court, and exception duly taken to the ruling. Thereupon the defendant entered a plea of nolo contendere,-- in effect, a plea of guilty,-- and was sentenced to imprisonment in jail for a period of six months, and to pay the costs of the prosecution, and has sued out this writ in error to review the judgment.

Francis B. James, for plaintiff in error.

Before LURTON, Circuit Judge, and SEVERENS and CLARK, District Judges.

CLARK District Judge, after stating the case, .

The contention of counsel for plaintiff in error is that the charge in the indictment that the letter was 'obscene, lewd, and lascivious' is insufficient, without adding the words, 'and of an indecent character.' It is argued that it requires the addition of these to make the letter one of the character declared to be nonmailable by the statute, and so to constitute the statutory offense. It is said the word 'obscene' has a defined meaning, which is not the same as 'indecency.' In just what respect there is a difference, for any practical purpose or in ordinary usage, has not been made clear, and we are not impressed with the force of this argument. The word 'obscene' is defined in the Century Dictionary as 'offensive to modesty and decency, impure, unchaste, indecent, lewd; as, obscene actions or language; obscene picture. Obscene publication, in law: Any impure or indecent publication tending to corrupt the mind and to subvert the respect for decency and morality. ' In the Standard Dictionary the definition is: 'offensive to chastity, delicacy, or decency; expressing or presenting to the mind or view something that decency, delicacy and purity forbid to be exposed. ' And this is exactly the definition found in Webster. In Black's Law Dictionary 'obscene' is defined as 'lewd, impure, indecent.' The word cannot be said to be a technical term of the law, and is not susceptible of exact definition in its juridical uses. 'Indecency is an act against good behavior and just delicacy. ' Bouv. Law. Dict; Com. v. Sharpless, 2 Serg.&R. 91. The well-settled purpose of this enactment and its grammatical arrangement are of more weight, however, than general or abstract definitions. The statute has been twice amended, enlarging its application. Having regard to the evil to be suppressed, and looking to the whole of the section, the intention was to render nonmailable every obscene, lewd, or lascivious book, pamphlet, Picture, paper, letter, writing, printing, or other publication of an indecent character, as being similar to those specifically named, and like those in being obscene, lewd, or lascivious in character. Such, we think, is the proper construction.

It had been found necessary by congress to amend and enlarge the statute so as to extend its application to new forms of objectionable matter going through the mails of the United States, and obscene, lewd, and lascivious letters were rendered nonmailable by this enlarged application. Congress no doubt having in mind the rule of strict construction applicable to such a statute, did not desire the enactment restricted to the publications specifically enumerated, but intended by the words, 'or other publication of an indecent character,' to enlarge its application to any publication which could properly be characterized as obscene, lewd, or lascivious, so as to keep all offensive...