Parish v. United States

• Decision Date: 17 November 1917
• Docket Number: 1557.
• Parties: PARISH v. UNITED STATES. [1]
• Court: U.S. Court of Appeals — Fourth Circuit

247 F. 40

PARISH v. UNITED STATES. ^[1]

No. 1557.

United States Court of Appeals, Fourth Circuit.

November 17, 1917

Arthur R. Young, of Charleston, S.C., and Jennings K. Owens, of Bennettsville, S.C. (Hagood, Rivers & Young, of Charleston S.C., on the brief), for plaintiff in error.

J Waties Waring, Asst. U.S. Atty., of Charleston, S.C. (Francis H. Weston, U.S. Atty. of Columbia, S.C., on the brief), for the United States.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

PRITCHARD Circuit Judge.

The plaintiff in error, hereinafter referred to as defendant, was indicted and tried under section 211 of the Penal Code of 1909, in the District Court of the United States for the Eastern District of South Carolina.

The indictment charges the defendant with mailing a letter which it is alleged was obscene, lewd, and lascivious, the letter in question being in the following language:

'B P. Parish.

J. B. Parish, E.E.

'Pee Dee Light & Power Company.

'Clio, S.C., May 10/17.

'Miss A. B. Vann, Clio, S.C.-- Dear Mdm.: Doubtless you will be surprised to get a letter from me but I feel it my duty to write. About two or three months ago I saw you and Dave R. in a very funny position down at my mill and last Sunday me and my wife and some other parties saw you at the same thing again. Now Miss Vann there is no good in you trying to deny this charge as we saw you and Dave on the raincoat together and thought we would stop you when you came back across the milldam and tell you what we were going to do but both of you looked too sheepish to bother with. You know what the school trustees will do about this if I tell them as well as I do. Now I have a proposition to make you before I expose the whole thing and if I can see you and have a private talk with you I think I can keep the whole thing quiet. Will leave this part with you and if you decide to see me in regard to the matter you can write me to-day and let me know where I can see you at. You can come down to the mill or I will go most any place that will suit you. Now if you want to keep this quiet don't let Dave know anything about it as he will try to raise sand and only make the matter worse for you.

'Will wait for my answer till to-morrow noon and if I don't hear from you by that time I will see Mr. Roberts and the school trustees about it.

'Don't be afraid to write as no one not even my wife will know the least thing about it, will call for my mail to-morrow noon.

'Yours truly,

B. P. Parish.'

The defendant in the court below moved to quash the indictment on the ground that the letter was not obscene, lewd, or lascivious, nor of indecent character or in violation of the statute. This motion was overruled. Certain requests to charge were presented which were refused and exceptions were taken. Exceptions were also taken to certain portions of the charge. The jury returned a verdict of guilty against the defendant, and sentence was imposed in pursuance thereof.

Defendant excepted, and the case now comes here on writ of error.

It is insisted by the second and third assignments that the court erred in refusing certain requests to charge. While these requests were denied, we think that the substance contained therein was substantially given to the jury by the court.

The main point presented for our consideration is as to the character of the letter in question. Counsel for defendant insists that the court erred in refusing to hold as a matter of law that the language of this letter was not such as to subject the defendant to indictment under the statute.

In the case of United States v. Hanover (C.C.) 17 F. 444, the court held that in a case like the one at bar the whole letter should be considered in determining its character.

In the case of Dunlop v. United States, 165 U.S. 486, 17 Sup.Ct. 375, 41 L.Ed. 799, the court, in charging the jury inter alia, said:

'Now, what is (are) obscene, lascivious, lewd, or indecent publications is largely a question of your own conscience and your own opinion; but it must come-- before it can be said of such literature or publication-- it must come up to this point: That it must be calculated with the ordinary reader to deprave him, deprave his morals, or lead to impure purposes.'

Mr. Justice Brown, in passing upon this instruction, said:

'The alleged obscene and indecent matter consisted of advertisements by women, soliciting or offering inducements for the visits of men, usually 'refined gentlemen,' to their rooms, sometimes under the disguise of 'Baths' and 'Massage,' and often for the mere purpose of acquaintance. It was in this connection that the court charged the jury that, if the publications were such as were calculated to deprave the morals, they were within the statute. There could have been no possible misapprehension on their part as to what was meant. There was no question as to depraving the morals in any other direction than that of impure, sexual relations. The words were used by the court in their ordinary signification, and were made more definite by the context, and by the character of the publications which had been put in evidence. The court left to the jury to say whether it was within the statute, and whether persons of ordinary intelligence would have any difficulty in divining the intention of the advertiser. We have no doubt that the finding of the jury was correct upon this point.'

In the case of United States v. Moore (D.C.) 129 F. 159, after discussing the merits of the case, the court employed the following language at the conclusion of the opinion:

'In short, it was a seductive letter-- as much so as if the writer had employed broader and balder indecent expressions for bringing about adulterous intercourse with this woman. At all events, it certainly is a question for the jury to pass upon, under proper instructions from the court.'

The case of United States v. Wroblenski (D.C.) 118 F. 495, we think, is very much in point. In that case the court said:

' * * * In either case the question of violation of the statute rests upon the import and presumed motive, and not upon the mere terms of the communication. Thus its tendency depends upon circumstances, and unexceptionable language may convey vicious information within the statute. * * * In the case of a private letter (sealed) there is no publication, * * * and no presumption arises of intention to give

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