Cain v. United States

• Decision Date: 12 February 1960
• Docket Number: No. 17954.,17954.
• Citation: 274 F.2d 598
• Parties: Robert H. CAIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

274 F.2d 598 (1960)

Robert H. CAIN, Appellant, v. UNITED STATES of America, Appellee.

No. 17954.

United States Court of Appeals Fifth Circuit.

February 12, 1960.

Grove Stafford, Jr., Alexandria, La., for appellant.

T. Fitzhugh Wilson, U. S. Atty., Shreveport, La., for appellee.

Before RIVES, Chief Judge, and HUTCHESON and JONES, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellant, defendant below, was found guilty, on each of Counts One and Three of a four-count indictment, of sending through the mails, in violation of 18 U.S. C.A. § 1461, for delivery to the addressee, an indecent, filthy, and vile letter, and not guilty on each of Counts Two and Four, in violation of 18 U.S. C.A. § 876 of depositing for mailing and delivery to the addressee a communication containing a threat to injure the person of the addressee. His motions for acquittal notwithstanding the verdict and in arrest of judgment, on the ground that the mailing of the letters could not, and did not, constitute a crime or offense against the United States Government for the reason that, while the letters did contain coarse, violent and shocking language, they were not indecent, filthy, and vile, as charged, and their sending could not support the conviction, were denied, and he was sentenced to one year on each of the two counts, the sentences to run concurrently, and the execution thereof suspended.

Appealing from the conviction and sentence, defendant is here insisting: that the court committed reversible error (1) in denying his motions for acquittal and in arrest; (2) in refusing to give in charge to the jury defendant's requested charges; (3) in not granting a mistrial because of the district attorney's statement in argument: "I tell you that man is a fiend. He is a man that is not safe to be among ordinary human beings. We don't know what he might do."; and (4) in denying defendant's plea of former jeopardy.

In support of his primary position, appellant asserts that, while the letters were admittedly coarse, vulgar, and shocking, they were not indecent, filthy and vile, in the sense of obscene, as that term is defined and applied in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and, therefore, do not violate Section 1461, Title 18.

In further support of his views, he invokes Swearingen v. United States, 161 U.S. 446, 16 S.Ct. 562, 40 L.Ed. 765, a decision under a different statute from that under which this prosecution is brought, and United States v. Keller, 3 Cir., 259 F.2d 54, a prosecution under Section 1463, for sending postcards through the mails, and three cases dealing with the unsuccessful efforts of the Postmaster General to exclude books or other publications from the mails. The first of these is Grove Press, Inc. v. Christenberry, D.C., 175 F.Supp. 488. In it the district judge gives his imprimatur, as a literary gem, to the publisher's unexpurgated version¹ of Lady Chatterley's Lover. The other two, One, Incorporated v. Olesen, 355 U.S. 371, 78 S.Ct. 364, 2 L.Ed.2d 352, and Sunshine Book Co. v. Summerfield, 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352, are each one sentence per curiam opinions reversing, on the authority of Roth v. United States, supra, the action of the lower courts. Since it is not claimed that the letters in question in this case served any useful purpose or had literary merit, indeed it is conceded that they did not have, it is quite obvious that these three cases are without bearing here and, for the purpose of this opinion, need not be either approved or disapproved by us.

Arguing that the letters are crass expressions of an abusive nature, written in anger, which are so revolting that they would be more apt to fill his girl friend's heart with hate than lust, indeed so repulsive as to be considered ludicrous, appellant urges upon us, in reliance on Swearingen's case, supra, that the conviction cannot be sustained without doing violence to clearly settled principles of law.

On its part, the United States argues that, by any standard of opinion and by any accepted or acceptable definition, the letters, which deal in a shockingly gross and sensual way with sexual matters, are indecent, filthy, and vile, and their deposit in the mails constitutes a crime, in violation of the language of the statute and the basic purpose of Congress, which was to protect the mails from use for just such communications. So arguing, it insists that whether they were written in lust or anger, or whether they did or did not have the effect of exciting lustful thoughts in the person to whom they were addressed, is wholly immaterial.

In support, it relies on United States v. Limehouse, 285 U.S. 424, 52 S.Ct. 412, 76 L.Ed. 843, where the defendant was indicted in thirty counts, each charging the mailing of a separate filthy letter, in which the court, with Justice Brandeis as the author, considered and rejected the same contentions which were advanced there as they are here on the authority of the Swearingen case. Saying:

"The letters contained much foul language; charged the addressee or persons associated with them with sexual immorality, and in some cases charged miscegenation and similar practices. They were coarse, vulgar, disgusting, indecent; and unquestionably filthy within the popular meaning of that term."

the court then...