Alpers v. United States

• Decision Date: 31 May 1949
• Docket Number: No. 12157.,12157.
• Citation: 175 F.2d 137
• Parties: ALPERS v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

175 F.2d 137 (1949)

ALPERS v. UNITED STATES.

No. 12157.

United States Court of Appeals Ninth Circuit.

May 31, 1949.

Hone & Lobree and Haskell Titchell, San Francisco, Cal., for appellant.

Frank J. Hennessy, U.S. Atty., Daniel C. Deasy, Jr., Assst. U.S. Atty., San Francisco, Cal., for appellee.

Before DENMAN, Chief Judge, and BONE and ORR, Circuit Judges.

ORR, Circuit Judge.

Appellant was convicted on two counts of an information charging him with knowingly depositing with the Railway Express Agency, for carriage in interstate commerce, certain obscene phonograph records. This, according to the Government's theory, constitutes a violation of certain of the provisions of 18 U.S.C.A. § 396 now § 1462.

That the phonograph records were deposited for carriage in interstate commerce is admitted; that there was inscribed thereon obscene matter is also admitted.

The question for determination is: Are the provisions of 18 U.S.C.A. § 396 broad enough to include phonograph records? The statute, insofar as it is material here, reads: "Whoever shall * * * deposit * * * with any express company * * * for carriage from one State * * * to any other State * * * any obscene, lewd, or lascivious, or any filthy book, pamphlet, picture, motion picture film, paper, letter, writing, print, or other matter of indecent character, * * *".

It is appellant's contention that by enumerating particular classes of obscene matter, Congress evinced a clear intention of limiting the application of the statute and of the general words employed therein, relying on the rule that where a statute employs specific words enumerating specific classes, modes or species, the statute should be construed as being limited in operation and not all-inclusive in scope. The Government admits this rule should be applied in construing the statute under consideration but insists that a proper application thereof demonstrates conclusively that it, 18 U.S.C. A. § 396, prohibits the shipment in interstate commerce of phonograph records impressed with recordings of obscene, lewd, lascivious and filthy language. In approaching a consideration of the questions involved in this case we should keep in mind that the rule of strict construction must be applied and that the doctrine of ejusdem generis is particularly applicable to criminal cases. United States v. Salen, 235 U.S. 237, 35 S.Ct. 51, 59 L.Ed. 210; First National Bank of Anamoose v. United States, 8 Cir., 206 F. 374, 46 L.R.A.,N.S., 1139. Had Congress intended the statute to be all-inclusive it very readily could have eliminated mention of the special classes and employed the general words "any obscene or indecent matter". The title of the Act at the time of enactment is some indication of the true intention of the Congress in enacting § 396. It read: "Importing and transporting obscene books." This is not controlling but does point up the fact that in all probability Congress intended only a prohibition against the transportation of obscene literature.

A rule of value sometimes employed in construing a statute is to construe it with reference to the evil it was designed to suppress, this in the event "the language * * * is ambiguous and equally susceptible of conflicting constructions. But * * * this rule does not apply to instances which are not embraced in the language employed in the statute, or implied from a fair interpretation of its context, even though they may involve the same mischief which the statute was designed to suppress." United States v. Chase, 135 U.S. 255, 10 S.Ct. 756, 758, 34 L.Ed. 117. The use of phonograph records to transmit obscene matter involves the same mischief which the statute is designed to suppress. It is matter of indecent character, but is entirely different from the methods enumerated.

Two prime methods can be employed in communicating obscene matter to the human mind — visual and auditory representations. This may be accomplished by graphic and lingual representations which may be used with or without mechanical assistance. Prior to 1920 the prohibited matter in the statute fell within the broad classification of visual representation. However, as scientific discoveries progressed it became evident that all visual representations were not ejusdem generis with the species mentioned in § 396 because the enumeration there made required no mechanical contrivance to render them susceptible of being read or observed. Congress, in 1920, added the words "motion-picture film" and in doing so very properly considered that motion-picture film was not within the classification theretofore mentioned in the statute. The motion-picture film is a succession of photographs on a film. The word "photograph" is a combination of the Greek words photos, meaning light, and graphos, meaning writing, and a photograph is a light writing. By the amendment of 1920 the...