Floren v. United States

• Decision Date: 20 April 1911
• Docket Number: 3,367.
• Citation: 186 F. 961
• Parties: FLOREN v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

186 F. 961

FLOREN v. UNITED STATES.

No. 3,367.

United States Court of Appeals, Eighth Circuit.

April 20, 1911

Syllabus by the Court.

An indictment under Rev. St. Sec. 3893 (U.S. Comp. St. 1901, p 2658), which charges defendant with depositing on a day named in the United States mail a letter containing information where and of whom articles intended to prevent conception could be obtained, addressed to a person named at Goshen Ind., but which contains no copy of the letter, no averment that it is so indecent as to be unfit to be spread upon the record of the court, and no allegation of its date, of the name signed to it, of the place where it was mailed, or of any words, figures, or marks which it, contains, whereby it can be identified, does not state the facts which constitute the offense charged with such clearness and certainty as to enable the defendant to avail himself of a conviction or acquittal thereon in defense to a second prosecution for the same offense, and it is insufficient in the face of a motion in arrest of judgment.

An indictment so fatally defective in its statement of the facts alleged to constitute the offense charged that a judgment of conviction or acquittal thereon constitutes no defense to another prosecution of the defendant for the same offense may not be cured by a bill of particulars.

Scott Rex, for plaintiff in error.

P. H Rourke, for the United States.

Before SANBORN and ADAMS, Circuit Judges, and WILLIAM H. MUNGER District Judge.

SANBORN Circuit Judge.

The plaintiff in error sued out this writ to reverse his conviction and the denial by the court below of his motion in arrest of judgment on the ground that the indictment on which he was convicted did not allege the facts which constituted the offense charged with such clearness and certainty as to enable him to avail himself of his conviction thereon in defense of a second prosecution for the same offense.

On a motion in arrest of judgment, as well as on a demurrer, it is essential to the validity of an indictment that it contain averments of the facts which constitute the offense it charges so certain and specific that upon conviction or acquittal thereon it, and the judgment upon it, will constitute a complete defense to a second prosecution of the defendant for the same offense. United States v. Hess, 124 U.S. 483, 486, 487, 8 Sup.Ct. 571, 31 L.Ed. 516; Stokes v. United States, 157 U.S. 187, 15 Sup.Ct. 617, 39 L.Ed. 667; Miller v. United States, 66 C.C.A. 399, 403, 133 F. 337, 341; Brown v. United States, 74 C.C.A. 214, 216, 143 F. 60, 62; Armour Packing Co. v. United States, 153 F. 1, 17, 82 C.C.A. 135, 151, 14 L.R.A. (N.S.) 400; United States v. Breakwater (D.C.) 174 F. 78, 79, 80.

The offense charged in this indictment was the depositing in the mail of a letter which conveyed information where and of whom articles for the prevention of conception could be obtained in violation of section 3893 of the Revised Statutes. The charge of the offense in the indictment was in these words:

'That on, to wit, the seventh day of January, in the year of our Lord one thousand nine hundred and six, in the county of Nelson, in the state and district of North Dakota, and within the jurisdiction of this court, S. O. Florin and J. Wold, late of the county of Nelson, in said district, did willfully and unlawfully deposit and cause to be deposited in the United States mail, for transmission by said mail, a letter addressed to Mrs. Cora Dillingham, Goshen, Indiana, which letter did then and there contain and convey information as to where, how, of whom, and by what means certain articles, things, and devices intended for the prevention of conception could be obtained.'

The indictment contained no averment that any of the contents of the letter were too indecent to be pleaded, and hence no excuse on that ground for the failure to set it forth therein. Rosen v. United States, 161 U.S. 29, 37, 16 Sup.Ct. 434, 480, 40 L.Ed. 606; Dunlop v. United States, 165 U.S. 486, 489, 17 Sup.Ct. 375, 41 L.Ed. 799. The allegation of the date of the mailing of the letter in no way specified or identified it, because proof of the mailing of a letter on any day before the finding of the indictment and within the statute of limitations was permissible under that averment. The indictment neither set forth the letter nor averred its date, nor the place where it was mailed, nor the signature to it (which appeared upon the trial not to be that of the defendant), nor specified any words, figures, or other identifying marks it contained. Every letter addressed to Mrs. Cora Dillingham, Goshen, Ind., conveying any information how articles intended to prevent conception could be obtained, signed by any one whomsoever, mailed at any place whatsoever, at any time whatever within the statutory limitation, was equally well described by this indictment. And, now that the defendant below has been convicted upon it, there is nothing in the indictment or in the judgment to prevent his conviction again for the same offense, because they contain no description by which the letter for the mailing of which he was convicted can possibly be identified or distinguished from any other letter of the same nature, signed by any one whomsoever, and mailed to the same address at any place and at any time whatsoever, within the time limited by the statute. These facts render this indictment fatally defective. An indictment under section 3893 of the Revised Statutes should either set forth the letter, card, circular, book, pamphlet, advertisement, or notice charged to have been mailed, or, if it is too indecent to be spread upon the records of the court, the indictment should contain an...