Krause v. United States

• Decision Date: 08 November 1928
• Docket Number: No. 2731.,2731.
• Citation: 29 F.2d 248
• Parties: KRAUSE v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

29 F.2d 248 (1928)

KRAUSE v. UNITED STATES.

No. 2731.

Circuit Court of Appeals, Fourth Circuit.

November 8, 1928.

Emil T. Mallek, of Baltimore, Md. (George W. Cameron, of Baltimore, Md., on the brief), for appellant.

A. W. W. Woodcock, U. S. Atty., of Baltimore, Md.

Before WADDILL and NORTHCOTT, Circuit Judges, and WATKINS, District Judge.

WADDILL, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the district of Maryland, at Baltimore, sentencing the appellant to serve two years in the federal penitentiary at Atlanta, after trial and conviction on a charge of sending obscene matter through the mails.

The appellant, Victor Krause, was indicted on December 14, 1927, by the grand jury for the district of Maryland, for a violation of section 211 of the Criminal Code, as amended (USCA tit. 18, § 334), in that he mailed a letter to one Lincoln C. Baird, United States Naval Hospital, Annapolis, Maryland, which letter was alleged to be "obscene, lewd, lascivious, and filthy," and "designed by the said Victor Krause to deprave the morals of the said Lincoln C. Baird," and to induce said Baird to commit sodomy and other unnatural and perverted practices with said Victor Krause. Krause demanded a bill of particulars, which was furnished him by the government, in which the letter itself was quoted, which read as follows:

"Baltimore, June 1. "My Dear Buddy

"No doubt you will be surprised to hear from me, but I just had to inquire how you are. I have been thinking of you every day since we met, as I enjoyed our meeting, and I hope you could meet me quite often, if convenience presents itself. Now, Buddy, I will be down the chateau this Friday night at 8. So if you can come which I hope you can, I will meet you at the station, at Severna Park, in the meantime I will try to call for you at the Hospital with a Friend and his car. So try to get your little Pal to come with you no others. I will call you up Friday noon time if every think will be o. k. trusting you are well and happy as Sat morning last, you know. So try to come.

"Yours truly Victor Krause. "With sincere regards."

— with the further statement that the prosecutor would rely upon the letter and parol evidence to be produced at the trial to prove the charges set out in the indictment.

The defendant filed a motion to quash the indictment for the reasons that the letter quoted in the bill of particulars, and referred to in the indictment, contained no word which was obscene, lewd, lascivious, or indecent; that the purpose of the statute was to purge the mails of obscene, lewd, lascivious, and indecent matter; and that the statute did not apply to cases which were not embraced in the language employed in it or implied from a fair interpretation of its contents, even though they might involve the same mischief which the statute was designed to suppress. This motion to quash was denied, and a demurrer to the indictment was overruled. The defendant pleaded "Not guilty," and upon trial was convicted and sentenced.

The prosecution offered the testimony of two witnesses, Brill, a post office inspector, and Baird, the addressee of the letter, at the conclusion of whose testimony the government rested its case. The defendant offered no evidence, and made four requests for a directed verdict in his favor, which were refused, to which action of the court the defendant duly excepted, as he did to sundry other rulings of the court, covered by 21 exceptions regularly and formally taken and filed. Upon the return of a verdict of guilty by the jury, the defendant filed his motion for a new trial, and also moved in arrest of judgment, which motions the court overruled, to all of which actions the defendant duly excepted, as aforesaid.

A general discussion of the subjects covered by the 25 assignments of error need not be entered into, since the real question to be determined in this case is whether the letter, the subject of the alleged infraction of the statute, is one that comes within its meaning and purpose. If it is not, then manifestly the jury trial, in which appellant was convicted, should not have been had, but, on the contrary, the case should have been disposed of by sustaining the motion to quash the indictment upon the filing of the bill of particulars furnished.

This statute has frequently been the subject of review by the courts, and it has been found necessary, in ascertaining its meaning, to determine whether the letter under consideration, within and of itself, constitutes an infraction of the statute. This, of course, involves the purposes for which the statute was passed, and whether the same, as an act of Congress, was not primarily intended as a regulatory measure for the conduct of the mails of the United States, and to keep them free and clear of improper, indecent, lewd, and lascivious matter, alleged to have been referred to in the letter, and to which exception is taken, rather than for the punishment of violations of criminal offenses provided for under the laws of the various states. It may not be said, of course, that the law should be construed only by the specific words used in the statute, but, on the contrary, its meaning must be arrived at from the general language used, the circumstances in which the same was written, and in the light of the purposes of the particular act, and the evils sought to be remedied by its passage.

The manner and method of disposition of the case, whether upon demurrer to, or motion to quash, the indictment, necessarily depends upon its peculiar facts and circumstances, sight not being lost of the fact that the interpretation of an act of Congress is involved, and that its purpose is to keep the mails free and clear of indecent and improper matter. Unless the act has been violated by mailing the letter in this case, no offense within the purview of the statute has been committed, and there is no good reason why the case should not have been disposed of in the usual method prescribed for the disposition of criminal cases; that is, by raising the legal questions by preliminary motions at the threshold of the case, and subsequently, if necessary, depending upon the conclusion reached upon such preliminary motions by submitting the case to the jury. United States v. Rosenberg, 7 Wall. 580, 583, 19 L. Ed. 263; Rosen v. United States, 161 U. S. 29, 30, 16 S. Ct. 434, 40 L. Ed. 606; Swearingen v. United States, 161 U. S. 446, 451, 16 S. Ct. 562, 40 L. Ed. 765; United States v. O'Donnell (C. C.) 165 F. 218; United States v. Benedict (C. C.) 165 F. 221; United States v. Journal Co., Inc. (D. C.) 197 F. 415, 416, 417; Bishop's Criminal Procedure, §§ 758, 759, 761-763.

In passing upon the motion to quash the indictment upon filing of the bill of particulars, the character of the contents of the letter in question — that is to say, whether it came within the inhibited classes named in the statute — at once arose, and while, where serious doubt exists, arising upon the face of the letter, as to its character, meaning, or purpose, the same might have been submitted to the jury for determination, but not, as here, where the letter upon its face presented no serious question of doubt as to the paper not being one within the purview of the act. Generally it may be said that the determining feature as to the nonmailability of the letter, in the circumstances, is whether the same is obscene, lewd, or lascivious, and by its language would tend to deprave and corrupt the morals of those into whose hands it might fall, open to such influences, by arousing lascivious thoughts.

In Swearingen v. U. S., 161 U. S. 446, 450, 451, 16 S. Ct. 562, 563 (40 L. Ed. 765), supra, Mr. Justice Shiras, speaking for the Supreme Court of the United States, said:

"Assuming that it was within the province of the judge to determine whether the publication in question was obscene, lewd and lascivious, within the meaning of the statute, we do not agree with the court below in thinking that the language and tenor of this newspaper article brought it within such meaning. The offense aimed at, in that portion of the statute we are now considering, was the use of the mails to circulate or deliver matter to corrupt the morals of the people. The words `obscene,' `lewd,' and `lascivious,' as used in the statute, signify that form of immorality which has relation to sexual impurity, and have the same meaning as is given them at common law in prosecutions for obscene libel. As the statute is highly penal, it should not be held to embrace language unless it is fairly within its letter and spirit.

"Referring to this newspaper article, as found in the record, it is undeniable that its language is exceedingly coarse and vulgar, and, as applied to an individual person, plainly libelous. But we cannot perceive in it anything of a lewd, lascivious and obscene tendency, calculated to corrupt and debauch the mind and morals of those into whose hands it might fall."

This statute has been frequently under consideration by the courts of this circuit, and the decisions have not always been in harmony one with the other as to the interpretation of the same. We will briefly refer to some of the cases within our knowledge, or which have been brought to our attention.

In United States v. Martin (D. C.) 50 F. 918, Judge Paul, of the Western District of Virginia, held the letter in controversy to be in violation of the postal laws, and overruled a motion to quash and a demurrer to the indictment. Briefly the letter was one written by a married man to an unmarried woman, with whom he had no former acquaintance, soliciting her to take a trip with him from Danville to Lynchburg, Va., and spend the night, proposing to pay her expenses and $5 additional, with the suggestion that, if she would go...