Davis v. United States

• Decision Date: 10 January 1933
• Docket Number: No. 6222,6223.,6222
• Citation: 62 F.2d 473
• Parties: DAVIS et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

62 F.2d 473 (1933)

DAVIS et al. v. UNITED STATES.

Nos. 6222, 6223.

Circuit Court of Appeals, Sixth Circuit.

January 10, 1933.

Robert H. French, of Cincinnati, Ohio (Edward Sheck, of Akron, Ohio, and Howell Leuck, of Cleveland, Ohio, on the brief), for appellants.

W. J. McDermott, of Cleveland, Ohio (W. J. Mahon, of Cleveland, Ohio, on the brief), for the United States.

Before HICKS, HICKENLOOPER, and SIMONS, Circuit Judges.

SIMONS, Circuit Judge.

Appellants were jointly tried and convicted in each of two separate trials below. While there were two prosecutions, each for a distinct offense, and two separate appeals where taken, the cases were argued together, and, since the meritorious question in each is the same, we dispose of it in a single opinion.

In case 6222, appellants were charged with violation of section 334, and, in case 6223, with the violation of section 396, of title 18 USCA. Section 334, so far as applicable, makes it unlawful for anyone to deposit or cause to be deposited "non-mailable matter," and defines that phrase to include any printed circular giving information where and how things designed, adapted and intended for indecent or immoral use, or for preventing conception can be obtained. Section 396 makes it unlawful for any one to knowingly deposit, or cause to be deposited, with any express company or other common carrier for carriage in interstate commerce, any "article, or thing designed, adapted, or intended for preventing conception." The indictment in the first case contained two counts, both relating to the mailing of the same circular, one charging that the circular described things designed, adapted, and intended for indecent and immoral use, and the other charging that the circular described things adapted and intended for preventing conception. The defendants were convicted on both counts, but sentenced only on the second. In the other case, the indictment charged deposit of a shipment with the Railway Express Agency, Inc., for carriage from Ohio to Pennsylvania, of articles and things condemned by the statute.

Appellant Davis was engaged in the business of handling druggists' rubber sundries of all kinds at Akron, Ohio. He conducted a general wholesale business, selling to wholesale druggists and drug sundry houses under the name Crown Rubber Sundries Company, and also sold to retail druggists under the name Akron Ace Specialty Company. Appellant Watson was in the employ of Davis. At the trials, appellants presented medical testimony tending to show that the articles described in the circular in the one case, and those constituting the interstate shipment in the other, have a legitimate medical and surgical use in treatment and prevention of disease. In the mail case, this evidence was challenged by the government. In the interstate commerce case, it was uncontradicted, no doubt in reliance upon rulings of the court in the earlier trial.

The District Judge, though receiving medical evidence of legitimate use, and presenting a fact issue thereon to the jury in each case, quite clearly took the view that intent was not an essential element of the crimes charged, and that scienter was not required to be shown. Consistently with this view, he refused to permit appellants to introduce evidence in either case tending to show their good faith or lack of intent that the articles described in the circular or sent by express were to be used for other than the immoral or contraceptive purposes condemned by the sections involved. The excluded evidence included offers to show by competent witnesses in the first case that the appellants had submitted their circular to the Post Office Department through the local postmaster; that they were thereafter notified that the post office would accept shipment in accordance with instructions contained in a letter from the Solicitor; that Davis had had two letters, one of them a permit from Washington to use the mails; that appellants had no agreements with customers for the improper use of the articles described; that no circulars had been mailed, and no articles sold to any but druggists, jobbers, and physicians. Similarly, in the second case, appellants were not permitted to show that the consignee of the interstate shipment was a person who had taken over the business of an employee of the appellant, engaged in soliciting the retail drug trade, and were not permitted to show absence of intent that the goods shipped were to be used for other than a legitimate medical or surgical purpose. The exclusion of the evidence referred to was objected to at the trials, exceptions were properly preserved, and the rulings of ...