Botsford v. United States

• Decision Date: 15 May 1914
• Docket Number: 2446.
• Citation: 215 F. 510
• Parties: BOTSFORD v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

215 F. 510

BOTSFORD v. UNITED STATES.

No. 2446.

United States Court of Appeals, Sixth Circuit.

May 15, 1914

M. J Heintz and Theodore Horstman, both of Cincinnati, Ohio, for plaintiff in error.

S. T McPherson and E. P. Moulinier, both of Cincinnati, Ohio, for the United States.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

PER CURIAM.

Defendant below prosecutes error to a conviction and judgment rendered under an indictment, comprising 22 counts, charging him with violations of sections 211 and 212 of the United States Penal Code through wrongful use of the mails. The charges in substance were that he caused to be deposited in the Cincinnati post office, for mailing and delivery, certain nonmailable matter, to wit, 11 copies of a paper called 'The Owl,' dated Cincinnati, Ohio, July 27, 1912, each of which bore on its first page the name and address of the person to whom it was to be delivered. The publication, as respects each copy of the paper, was described in character and intent in two separate counts. A portion of the publication appeared on the first page, and the rest on the second page (i.e., inside) of the paper. The even-numbered counts relate to the whole publication, and the odd-numbered counts only to the part imposed on the first page; the former alleging offenses under section 211, and the latter under section 212. Concededly none of the copies of The Owl so mailed was inclosed within an envelope or wrapper. It is insisted by counsel for the prosecution that the first and last pages of the paper (comprising eight pages) constituted an 'outside cover' within the meaning of section 212, and that the portion appearing on the first page was violative of that section. Counsel for defendant contest this, and urge that section 212 does not apply to an outside cover, or even to an envelope or wrapper, no matter what is displayed upon it, unless it incloses mailable matter; and since the whole publication-- that is, the part so appearing on the inside of the paper, as well as that on the outside-- was alleged in the even-numbered counts to be nonmailable under section 211, one of two results followed: Either no offense was committed under the odd-numbered counts, or the odd and even series of counts were repugnant. Upon the claim of repugnancy the defendant moved, both before and after the evidence was introduced, that the government be required to elect upon which set of counts it would rely, the even-numbered or the odd-numbered. The motion so repeated was denied; and it is earnestly contended that this was error.

It is important now to have in mind the language of sections 211 and 212, and the relevant portions are quoted in the margin. ^[1] Counsel's theory of repugnancy is in effect that the publication was made to perform double service, which was self-contradictory; because, conceding for the sake of argument that the first and last pages constituted an 'outside cover,' the portion of the publication carried on the inside of the paper could not be both nonmailable under section 211 and mailable under section 212. This is based upon counsel's view, as stated, that whatever may be displayed upon an outside cover it is not prohibited by section 212, unless the inside matter is 'otherwise mailable by law.' But if this view cannot be sustained, the claim of repugnancy cannot. Concededly sections 211 and 212 were intended to define distinct offenses. Broadly considered, and apart from mere definition of what is designed to be excluded from the mails, the first relates to forbidden matter which may or may not be concealed from view by any sort of nonoffending inclosure, and the second to forbidden matter displayed on an 'envelope or outside cover or wrapper * * * or any postal card'; stated in another way, the one class of offenses may be said to be of a general nature and the other specific, as respects the mails, and the most obvious legislative purpose to be deduced from the language employed is that the two classes shall be treated as alike independent of each other and consistent. This will be more readily seen, we think, in the brief history of the legislation, appearing below. ^[2] From 1872 to 1888 the mailable character of envelopes was tested by what they displayed and not by what they contained. The reasons for this are apparent. It was not necessary to open and examine letters in order to ascertain whether the envelopes were mailable or not. Forbidden contents of a plain and sealed envelope were not easily detected; but this was not so as to evils arising from exposure of matter upon envelopes and other inclosures used in the mails. So in June, 1888, further legislation against this latter abuse was passed, embracing the 'outside cover or wrapper' as well as the envelope, and defining as nonmailable and denouncing with penalties objectionable matter exposed thereon. This was done by separate act, commencing with the words 'All matter otherwise mailable by law.' We are disposed to believe that these words were used merely as a precautionary measure against an interpretation that the inclusion of mailable, instead of nonmailable, matter within a forbidden envelope or the like, would escape the law. There was no more reason for Congress to concern itself about the contents of envelopes or outside covers or wrappers after this change in legislation than there was before. Provision had been made by section 3893 against nonmailable matter concealed within an envelope, and this was in effect continued in the section after the exclusion therefrom of envelopes, and, indeed, is still maintained in section 211; it was therefore unnecessary to repeat the provision when seeking to remedy another and distinct evil by prohibiting the display of objectionable matter upon the 'envelope or outside cover or wrapper,' but since this display could be made regardless of the mailable character of the contents, it might well have been deemed necessary to denounce such display, even though the contents were mailable. If the words employed had been, 'though otherwise mailable,' the intent to make the display an offense, whether the contents were mailable or not, would have been indisputable; but it is not necessary to add the word 'though'-- mere emphasis of the word 'otherwise' will fairly disclose the same intent, and, indeed, in the light of the history of this legislation, any ordinary and attentive reading of the words 'otherwise mailable' leads to the same end. This derives support from the obvious intent disclosed by the use of the term 'postal card,' with which the words 'envelope or outside cover or wrapper' are associated. Every law must be given a sensible construction (United States v. Kirby, 74 U.S. (7 Wall.) 482, 486, 19 L.Ed. 278); and it is unreasonable to suppose that inclosed matter, whether harmless or offensive, would be regarded as mailable in a forbidden envelope, outside cover or wrapper. Further, if the words 'otherwise mailable' are to be narrowly interpreted, the object of section 212, except as to postal cards, could be wholly defeated simply by placing nonmailable matter within an envelope, outside cover or wrapper of the most objectionable character; and so the evils evidently sought to be remedied by the section might, at least so far as it is concerned, be practiced with impunity. It is not conceivable that this could have been the intention of Congress, for such an interpretation would at once reduce the law to absurdity and frustrate it; and this was never the office of interpretation. True, we are considering a criminal act, and the rule of strict construction applies; but as the present Mr. Chief Justice White said in United States v. Corbett, 215 U.S. 233, 242, 30 Sup.Ct. 81, 84 (54 L.Ed. 173)

'The rule of strict construction does not require that the narrowest technical meaning be given to the words employed in a criminal statute in disregard of their context and in frustration of the obvious legislative intent.'

In Pickett v. United States, 216 U.S. 456, 461, 30 Sup.Ct. 265, 267 (54 L.Ed. 566), Mr. Justice Lurton expressed the rule in this language:

'The reason of the law, as indicated by its general terms, should prevail over its letter, when the plain purpose of the act will be defeated by strict adherence to its verbiage.'

In Glickstein v. United States, 222 U.S. 139, 32 Sup.Ct. 71, 56 L.Ed. 128, it was held that the immunity given by subdivision 9 of section 7 of the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 548 (U.S.

Comp. St. 1901, p. 3424)) was not applicable to a prosecution for perjury committed by the bankrupt when examined under it. That provision requires the bankrupt to submit to examination concerning his business, the cause of his bankruptcy, the character of his property and its whereabouts, and the like; but it is further provided that 'no testimony given by him * * * shall be offered in evidence against him in any criminal proceeding. ' It was contended that since the immunity provision was couched in unambiguous words, the command to give testimony could not be so construed as to render such testimony admissible in a criminal prosecution for perjury; but, said Mr. Chief Justice White (222 U.S. 143, 32 Sup.Ct. 73, 56 L.Ed. 128):

' * * * It is impossible in reason to conceive that Congress commanded the giving of testimony, and at the same time intended that false testimony might be given with impunity in the absence of the most express and specific command to that effect.'

This court had occasion to apply the rule in Daniels v. United States, 196 F. 459, 116 C.C.A. 233. See, also, Lau Ow Bew v. United States, 144 U.S. 47, 56, 57, 12 Sup.Ct 517, 36 L.Ed. 340; United States v. Hogg, 112 F. 909, 912, 50 C.C.A. 608 (C.C.A. 6th Cir.). ...