MacFadden v. United States

• Decision Date: 09 November 1908
• Docket Number: 15.
• Citation: 165 F. 51
• Parties: MacFADDEN v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

165 F. 51

MacFADDEN v. UNITED STATES.

No. 15.

United States Court of Appeals, Third Circuit.

November 9, 1908

Henry M. Earle, for plaintiff in error.

Walter H. Bacon, Asst. U.S. Atty., opposed.

Before DALLAS and GRAY, Circuit Judges, and ARCHBALD, District Judge.

PER CURIAM.

The defendant was convicted upon sufficient evidence, after a correct and adequate charge, which is practically all that we need to know or say. The story on which the conviction is based, if not the magazine in which it appears, of which the defendant is the editor in chief and responsible head, is suggestively lewd and bad; none the less so, because of the alleged reforming and corrective purpose overlaying it, which is speciously advanced. It plainly, and in our judgment intentionally, caters to a prurient taste, which it is the thinly disguised object of the author to incite; and associated, as it is, in the periodical where it appears with certain articles on physical culture to which no objection perhaps can be made-- although no such clean bill can be given to many things, articles as well as advertisements, which are there found-- it is capable of doing incalculable harm; all the more so because it is intended to circulate among and attract the young, to whom the magazine is particularly addressed. We are clear that the publication-- story, if not magazine-- is of the obscene lewd, and lascivious character which it was the object of Congress by the legislation in question to suppress. The standard is not the publications to which we are referred which are said to be just as bad, but pass muster with some. The test is the tendency to deprave and corrupt the minds of those who are open to such influence, into whose hands the publication may come (Rosen v. United States, 161 U.S. 29, 16 Sup.Ct. 434, 40 L.Ed. 606), of the existence of which corrupting tendency we have no doubt here.

Complaint is made that the defendant's requests were denied, to some of which, at least, it is said, no objection can be raised. But there were 22 of them, and they were presented so late, according to the record, that they could not be examined properly, which itself justifies the refusal of them as a whole, in addition to which they asked for instructions which, with perhaps one or two exceptions, which were fully covered in the general charge, the court could not under any circumstances be expected to give. In any view there was thus no...