Flying Eagle Publications, Inc. v. United States, 5482

• Decision Date: 21 January 1960
• Docket Number: 5483.,No. 5482,5482
• Citation: Flying Eagle Publications, Inc. v. United States, 273 F.2d 799 (1st Cir. 1960)
• Parties: FLYING EAGLE PUBLICATIONS, INC., Defendant, Appellant, v. UNITED STATES of America, Appellee. Michael ST. JOHN, Defendant, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

273 F.2d 799 (1960)

FLYING EAGLE PUBLICATIONS, INC., Defendant, Appellant, v.UNITED STATES of America, Appellee.

Michael ST. JOHN, Defendant, Appellant, v.UNITED STATES of America, Appellee.

Nos. 5482, 5483.

United States Court of Appeals First Circuit.

January 21, 1960.

COPYRIGHT MATERIAL OMITTED

John H. Sanders, Concord, N. H., with whom Upton, Sanders & Upton, Concord, N. H., was on brief, for appellants.

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.

WOODBURY, Chief Judge.

A grand jury in the court below charged that these appellants and two other individuals, in violation of Title 18 U.S. C. § 1461, "on or about or between January 29, February 1, February 6, and February 14, 1957, at Concord in the State and District of New Hampshire * * * did knowingly deposit for mailing or delivery copies of the April, 1957, issue of a publication entitled `Manhunt' containing obscene, lewd, lascivious, filthy or indecent matter."Motions to dismiss the indictment were denied and trial by jury on pleas of not guilty resulted in verdicts of guilty as to the appellants and verdicts of not guilty as to their two co-defendants.At the close of the evidence the appellants moved for judgments of acquittal and seasonably after verdict filed motions in arrest of judgment but their motions were denied and the court entered the judgments of sentence from which these appeals have been taken.

"Manhunt," described on its cover as "World's Best Selling Crime-Fiction Magazine," is a monthly periodical which has been published since 1953 by the appellant in No. 5482, Flying Eagle Publications, Inc., hereinafter called Flying Eagle.Although the offices of Flying Eagle are in New York, "Manhunt" is printed and mailed to subscribers and news dealers by Rumford Printing Company of Concord, New Hampshire.The appellant in No. 5483, Michael St. John, is the president of Flying Eagle and the owner of at least one half of its stock.The two defendants below who were acquitted were the art director of the magazine and the former executive vice president of Flying Eagle who had owned the balance of its stock.

The statute involved, Title 18 U.S.C. § 1461, as it read at the time of the alleged offense and when the indictment was returned, in pertinent part declared to be nonmailable matter "Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance" and provided that: "Whoever knowingly deposits for mailing or delivery anything declared by this section to be nonmailable * * * shall be fined not more than $5,000 or imprisoned not more than five years, or both."The first question we shall consider is whether the appellants' motions to dismiss and in arrest of judgment should have been granted for the reason that the indictment fails to state an offense under the above statute with legally sufficient particularity.

The April 1957 issue of "Manhunt" consists of 2 novelettes and 10 short stories, each illustrated, interspersed with 19 short anecdotes.A lurid picture of a partially clothed woman with a smoking pistol in her hand standing over the dead body of a man is on its front cover; its back cover, inside and out, carries advertising.The appellants' motions to dismiss, and their argument here that their motions should have been granted, rest upon the proposition that although the indictment specified the particular issue of "Manhunt" alleged to be nonmailable and the dates and place of mailing it did not specify the particular article or articles therein contained which would be relied upon to prove non-mailability and hence did not adequately apprise the defendants of the nature of the charge laid against them.¹We find no merit in the contention.

Rule 7(c) of the Federal Rules of Criminal Procedure,18 U.S.C.A., provides that "The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged."And years ago the Court in United States v. Cruikshank, 1875, 92 U.S. 542, 558, 23 L.Ed. 588, clearly and succinctly stated the test for the legal sufficiency of an indictment as follows: "The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable him to make his defense, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.For this, facts are to be stated, not conclusions of law alone.A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances."

It is true that while the indictment sets out the precise issue of the periodical alleged to contain obscene matter and the dates and place of mailing, it does not, as it might well have done, specify the particular story or stories, picture or pictures, anecdote or anecdotes charged to be obscene thereby rendering the entire issue nonmailable.But the magazine is only 64 pages from cover to cover, and it does not seem to us that too heavy a burden was placed on the appellants by putting them on notice to meet the charge that any one or more or even all of the stories, pictures or anecdotes contained matter declared to be nonmailable.The indictment sets out in general language every essential element of the offense charged.Thus it complies with the accepted test.If the appellants felt that they were seriously hampered in making their defense they could have moved under CriminalRule 7(f) for a bill of particulars.Since they did not do so, we may assume that they were sufficiently informed of the charge they would have to meet at the trial.SeeBillingsley v. United States, 8 Cir., 1926, 16 F.2d 754, 756, and see alsoCefalu v. United States, 10 Cir., 1956, 234 F.2d 522.

The appellants also contend that the word "article" in the statute should be construed as referring to each separate story, illustration or anecdote in the...