Magon v. United States

• Decision Date: 04 February 1918
• Docket Number: 2901.
• Citation: 248 F. 201
• Parties: MAGON et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

248 F. 201

MAGON et al. v. UNITED STATES.

No. 2901.

United States Court of Appeals, Ninth Circuit.

February 4, 1918

J. H Ryckman, of Los Angeles, Cal., for plaintiffs in error.

Albert Schoonover, U.S. Atty., and Clyde R. Moody, Asst. U.S. Atty both of Los Angeles, Cal.

Before GILBERT and HUNT, Circuit Judges, and DOOLING, District Judge.

DOOLING District Judge.

The defendants were convicted of the offense of depositing in the post office at Los Angeles, Cal., to be transmitted to divers persons in the United States and in Mexico, a certain newspaper, which was a publication of an indecent character as tending to incite murder and assassination. The indictment is based upon section 211 of the Criminal Code, as amended in 1911; the portions of the section material here being the following:

'Every obscene, lewd, or lascivious, and every filthy, book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character, * * * is hereby declared to be nonmailable. * * * Whoever shall knowingly deposit, or cause to be deposited for mailing or delivery, anything declared by this section to be nonmailable, * * * shall be fined not more than five thousand dollars, or imprisoned not more than five years, or both. * * * And the term 'indecent' within the intendment of this section shall include matter of a character tending to incite * * * murder, or assassination. ' Comp. St. 1916, Sec. 10381.

The last sentence is the amendment of 1911. Upon the meaning therein assigned to the word 'indecent' this prosecution is based. Defendants contend with great earnestness that this definition is void for uncertainty, in that it leaves it to the jury to say what words upon paper tend to incite murder or assassination. But, while this particular portion of the statute is new, the statute itself is an old one, and has been many times considered by the courts. In construing the word 'obscene,' as used therein, it has been uniformly held that, if the matter complained of were of such a nature as would tend to corrupt the morals of those whose minds are open to such influences by arousing or implanting in such minds lewd or lascivious thoughts or desires, it is within the prohibition of the statute, and that whether or not it had such tendency was a question for the jury. Rosen v. United States, 161 U.S. 29, 16 Sup.Ct. 434, 480, 40 L.Ed. 606; Knowles v. United States, 170 F. 409, 95 C.C.A. 579; United States v. Bennett, Fed. Cas. No. 14,571; McFadden v. United States, 165 F. 51, 91 C.C.A. 89; Demolli v. United States, 144 F. 363, 75 C.C.A. 365; United States v. Musgrave (D.C.) 160 F. 700; United States v. Harmon (D.C.) 45 F. 414; United States v. Clarke (D.C.) 38 F. 732.

It is no more difficult for a jury to determine whether certain language has a tendency to incite murder or assassination than to determine whether certain other language has a tendency to corrupt the morals of those whose minds are open to such influences, and while the meaning assigned to the word 'indecent' in the statute by the amendment of 1911 is new, the method of its application is as old as the statute itself. It is for the court to determine in the first instance whether any given language can have the tendency attributed to it, and for the jury to determine whether it has such tendency in fact. A defendant charged with sending indecent matter through the mails is therefore, under the amended statute, in the same position that a defendant charged with sending obscene matter has always been in, and there is no more reason for holding the statute void as to the one than as to the other.

It is further claimed that the indictment is invalid because the newspapers deposited in the post office are not described as having been addressed to any persons. But it is averred that they were so deposited 'to be transmitted by the post office establishment to many and divers persons; the names of which divers persons are unknown to the grand jurors. ' This is sufficient. Durland v. United States, 161 U.S. 306, 16 Sup.Ct. 508, 40 L.Ed. 709.

The indictment is also challenged because it contains no distinct averment that the newspaper was nonmailable. But it avers that the newspaper 'contained certain indecent, vile, and filthy substance and language, and was a publication of an indecent character, and which said indecent, wile, and filthy substance and language * * * was of a character to incite, in the minds of persons reading the same, murder and assassination. ' The...