Burton v. United States

• Decision Date: 19 February 1906
• Docket Number: 2,181.
• Citation: 142 F. 57
• Parties: BURTON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

142 F. 57

BURTON et al. v. UNITED STATES.

No. 2,181.

United States Court of Appeals, Eighth Circuit.

February 19, 1906

(Syllabus by the Court.)

A count for mailing a single copy of a circular declared by Rev. St Sec. 3893 (U.S. Comp. St. 1901, p. 2658), to be nonmailable is not double merely because it alleges two reasons why the circular was nonmailable, viz., that it gave information where an obscene book might be obtained and was in itself obscene.

An indictment charging the defendant with 'willfully unlawfully, wrongfully, and state and district of Minnesota, and within the jurisdiction of this court, Olly might be obtained, the sufficiency of which is not questioned before verdict, is, upon motion in arrest of judgment, to be taken as meaning that the circular was mailed with knowledge of its contents and of the contents of the book respecting which it gave information.

Where at the conclusion of the government's evidence a defendant requests the the court to direct a verdict of not guilty, but instead of standing upon the request and his exception to its denial produces evidence in his defense, he waives all right to insist that the verdict should be rested solely upon the evidence produced by the government.

Where, in the execution of their joint enterprise, one partner deposits a nonmailable circular in the mail by the authorization of another, or with his knowledge and acquiescence, the latter causes the circular to be so deposited within the meaning of Rev. St. Sec. 3893 (U.S. Comp. St. 1901, p. 2658.)

Where the acts described and the ideas conveyed in a book are calculated to deprave the morals of the reader by exciting sensual desires and libidinous thoughts, the book is obscene, under Rev. St. Sec. 3893 (U.S. Comp. St. 1901, p. 2658); and it is immaterial that the information conveyed is accurate and scientific and tends to prevent disease and other ills resulting from existing ignorance upon the topics discussed, that as a whole the book is calculated to be of value to the medical practitioner and to men and women in the marriage relation, that its publication was approved by several physicians, and that some portions of it are extracts from standard medical works.

The inquiry under Rev. St. Sec. 3893 (U.S. Comp. St. 1901, p. 2658), is whether or not the circular or book charged to have been obscene was in fact of that character, and if it was, and the defendant knew its contents at the time of the act charged, it is immaterial that he himself did not regard it as of that character. Everyone who uses the mail for distributing circulars or advertising books must take notice of what is obscene.

Whether or not a book is obscene, under Rev. St. Sec. 3893 (U.S. Comp. St. 1901, p. 2658), is to be determined upon a consideration of such parts of it as are claimed to be of that character, together with so much of the context as may be necessary to a proper understanding of them, but not necessarily upon an inspection of the entire book and with reference to all of its contents.

Charles W. Somerby and Victor Welch (Fred V. Brown, on the brief), for plaintiffs in error.

Charles C. Houpt, U.S. Atty., and Paul A. Ewert, Asst. U.S. Atty.

Before VAN DEVANTER, Circuit Judge, and CARLAND and POLLOCK, District Judges.

VAN DEVANTER, Circuit Judge.

This is a writ of error to review the conviction of Olly D. Burton and Charles W. Malchow under section 3893 of the Revised Statutes (U.S. Comp. St. 1901, p. 2658) for knowingly depositing and causing to be deposited in the postoffice at Minneapolis, for mailing and delivery, a printed circular declared by that section to be nonmailable. The indictment contained two counts, which differed only in respect of the name and address of the person to whom the circular was mailed. The first count, omitting the title and title page of the book therein named, the name and address of the person to whom the circular was mailed, and the title page of the circular, all of which are fully set forth, is as follows:

'The grand jurors of the United States of America within and for said district and division, in the name and by the authority of the said United States of America, upon their oaths present, that heretofore, to wit, on the 15th day of August, A.D. 1904, at the city of Minneapolis, in the county of Hennepin, in the state and district of Minnesota, and within the jurisdiction of this court, Olly D. Burton and Charles W. Malchow, both late of said district, and each of them, did then and there willfully, unlawfully, wrongfully, and knowingly deposit and cause to be deposited for mailing and delivery at the post office of the said United States at said city of Minneapolis, Minnesota, a certain printed pamphlet, circular, and notice giving information directly where, how, and of whom and by what means a certain obscene, lewd, and lascivious book of an indecent character, entitled * * * may be obtained and procured, and which said obscene, lewd, and lascivious book of an indecent character contained on the third page of said book the following: * * * and which said book contained 308 pages of certain obscene, lewd, lascivious, and indecent matter in print, of too great length and of too indecent character to be here set forth in full, which said printed pamphlet, circular, and notice so deposited and caused to be deposited for mailing and delivery by the said Olly D. Burton and Charles W. Malchow, and each of them, as aforesaid, was then and there inclosed in an envelope, postage prepaid thereon, which said envelope contained said printed pamphlet, circular, and notice as aforesaid and was addressed as follows: * * * and which said printed pamphlet, circular, and notice then and there contained in said envelope contained on the first page of said printed pamphlet, circular, and notice the following: * * * and which said printed pamphlet, circular, and notice following: * * * and which said printed pamphlet, circular, and notice then and there contained 20 pages of certain obscene, lewd, lascivious, and indecent matter in print of too great length and of too indecent character to be here set forth in full, which is against the peace and dignity of the United States and contrary to the form of the statute in such case made and provided.'

The defendants, conceiving that each count charged two distinct offenses, because the printed circular was alleged to give information as to where, how, of whom, and by what means an obscene book might be obtained, and to contain in itself obscene matter, moved that the prosecutor be required to elect upon which of the two charges he would proceed. The motion was denied, and this is assigned as error. The ruling was right. Whether the circular contained one or both of the matters alleged, it was nonmailable under section 3893 of the Revised Statutes, matters alleged, it was nonmailable under section 3893 of the Revised Statutes,' the latter portion of which provides for the punishment of 'any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, anything declared by this section to be nonmailable. ' The act charged in each count was the mailing of a single copy of the circular, and that constituted but one offense.

After they were found guilty by the jury the defendants moved in arrest of judgment upon the ground that the indictment did not directly allege that they knew the nonmailable character of the circular when it was deposited in the post office, and complaint is made of the denial of the motion. This ruling was also right. The sufficiency of the indictment was not questioned until after the verdict, and then the words 'willfully, unlawfully, wrongfully, and knowingly,' used to describe the act charged, were to be taken in their broadest sense; that is as applying to all that was expressed in respect of that act, and therefore as imputing to the defendants knowledge of the contents of the circular and of the book therein advertised. Rosen v. United States, 161 U.S. 29, 16 Sup.Ct. 434, 40 L.Ed. 606; Price v. United States, 165 U.S. 311, 17 Sup.Ct. 366, 41 L.Ed. 721; United States v. Chase (C.C.) 27 F. 807; United States v. Clark (C.C.) 37 F. 106; United States v. Nathan (C.C.) 61 F. 936.

At the conclusion of the evidence for the prosecution the defendant Malchow requested the court to instruct the jury to return a verdict of not guilty as to him, on the ground that no evidence had been produced which tended to show that he was in any way responsible for the mailing of the circular. The request was denied, and he now seeks to press an exception taken to that ruling. But as he did not stand upon the evidence produced by the prosecution. This rule is uniformly applied in civil cases. Accident Ins. Co. v. Crandal, 120 U.S. 527, 530, 7 Sup.Ct. 685, 30 L.Ed. 740; Robertson v. Perkins, 120 U.S. 233, 236, 9 Sup.Ct. 279, 32 L.Ed. 686; Runkle v. Burnham, 153 U.S. 216, 222, 14 Sup.Ct. 837, 38 L.Ed. 694; Hansen v. Boyd, 161 U.S. 397, 403, 16 Sup.Ct. 571, 40 L.Ed. 746; Chicago Great Western Ry. Co. v. Healy, 30 C.C.A. 11, 86 F. 245. And no reason is perceived why it is not equally applicable to criminal cases.

When the production of evidence was finally concluded Malchow's request for a directed verdict was renewed, and was again denied; and, error being assigned upon this ruling it becomes necessary to consider whether or not there was such evidence of responsibility on his part for the mailing of the circular as justified the submission of that matter to the jury. But the question must be determined upon a consideration of all the evidence, and not merely of that produced by the prosecution. It was shown that the two copies of the circular described in the indictment were deposited in the post office by...