Konda v. United States

• Decision Date: 06 October 1908
• Docket Number: 1,411.
• Citation: 166 F. 91
• Parties: KONDA v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

166 F. 91

KONDA v. UNITED STATES.

No. 1,411.

United States Court of Appeals, Seventh Circuit.

October 6, 1908

John F Getting, for plaintiff in error.

Edwin W. Sims, U.S. Dist. Atty., and F. G. Hanchett and Frank R Reid, Asst. U.S. Dist. Attys.

Before GROSSCUP, BAKER, and KOHLSAAT, Circuit Judges.

BAKER Circuit Judge.

Plaintiff in error was convicted of sending an obscene pamphlet through the mails, in violation of section 3893 of the Revised Statutes (U.S. Comp. St. 1901, p. 2658).

No error was committed in overruling the demurrer to the indictment. The averment that the pamphlet was obscene, lewd and lascivious was a statement of fact-- 'no more a legal conclusion than was the one that the article deposited in the post office was a letter or than would be an allegation of ownership or sale. ' Rinker v. U.S., 151 F. 755, 81 C.C.A. 379.

The indictment, stating that the matter was too obscene to be spread of record, sufficiently identified the pamphlet by describing its size and appearance and by setting forth the title page. Rinker v. U.S., supra, and cases there cited.

Plaintiff in error, so the grand jurors charged, did unlawfully and knowingly deposit in the mails nonmailable matter. Contention is made that the indictment is deficient in substance in that it fails to allege that plaintiff in error knew the character of the pamphlet he mailed. Beyond question such knowledge is an essential element of the offense. The statute, however, only says that 'any person who shall knowingly deposit * * * nonmailable matter * * * shall be deemed guilty of a misdemeanor. ' That is, in the statute the adverb 'knowingly' not merely modifies the verb, but characterizes the whole act that is stated by the predicate and object. Now, if the courts and the citizens of the country are bound to know on reading the statute that a depositing of nonmailable matter is a misdemeanor only when the depositor has knowledge of the character of the matter, we believe (though some cases to the contrary are cited, U.S. v. Reid (D.C.) 73 F. 289; U.S. v. Clifford (C.C.) 104 F. 296) that the same language in an indictment is sufficient to notify a defendant that the government is charging and has undertaken to prove that he knew the character of the matter when he mailed it. See U.S. v. Clark (C.C.) 37 F. 106; Price v. U.S., 165 U.S. 311, 17 Sup.Ct. 366, 41 L.Ed. 727.

'I charge you as a matter of law,' said the judge to the jury, 'that the document is nonmailable, that it was forbidden by the laws of the United States, that it had no place in the mails, and that you will not consider the question, in arriving at your verdict in this case, whether or not it was nonmailable. ' This was harmful error, for two reasons.

The pamphlet was alleged to be 'in the Slovenian language.' No translation of it as a whole was in evidence. 'A Victim of Circumstances, or Memoirs of a Carniolian Priest' contained 69 pages. In the translation which the judge used in passing upon the character of the work nothing was presented from more than half the pages. From the other pages excerpts were taken here and there. Now these excerpts may have correctly disclosed the scope and tone of the pamphlet. On the other hand, when they were thus taken from their settings and deprived of the support of their full context, it may be that they did not fairly represent the character of the work. For instance, the results of an investigation...