Flying Eagle Publications, Inc. v. United States, 5720.
| Decision Date | 10 January 1961 |
| Docket Number | No. 5720.,5720. |
| Parties | FLYING EAGLE PUBLICATIONS, INC., Defendant, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Wesley E. Whitney, Concord, N. H., with whom Upton, Sanders & Upton, Concord, N. H., was on brief, for appellant.
Alexander J. Kalinski, Asst. U. S. Atty., Manchester, N. H., with whom Maurice P. Bois, U. S. Atty., Concord, N. H., was on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
The indictment in this case charged the defendant corporation, a magazine publisher, and three individual members of its staff, with mailing nonmailable matter, to wit, an "obscene, lewd, lascivious, indecent, filthy or vile" magazine. 18 U.S.C. § 1461. At the first trial the corporate defendant and one individual were convicted, and the other two individuals acquitted. On appeal, 1 Cir., 1960, 273 F.2d 799, we reversed because the court had permitted the jury to consider six stories or articles as falling within the statute when, in our opinion, only one, and an illustration to another, could have been so regarded. At the second trial the court instructed the jury at the outset that while the indictment named four defendants, only two were before the court, and stated that the others "have been separated from this action." The defendants immediately moved for mistrial, without particularizing the nature of their objection. The court, at the bench, asked counsel how the matter could be "clarified." Counsel made no suggestion. The court then said, "I will tell them by acquittals, I will tell them the facts." Counsel for defendants replied, "I still think we are harmed and prejudiced by whatever is done." The court thereupon instructed the jury that the other defendants were "separated * * * because they have been previously acquitted." Thereafter the corporate defendant (hereinafter the defendant) was convicted, and it appeals.
The defendant argues that telling the jury that other defendants were separated and had been acquitted in effect informed them that the present defendants had previously been convicted. The logic of this escapes us. It was certainly reasonable, if not, indeed, necessary, to tell the jury why the other named defendants were not in court. We can think of no more innocuous way of doing so than by announcing that they had been "separated." Even this, however, was regarded as ground for mistrial by the defendant, who stated flatly that...
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