Price v. United States

• Decision Date: 15 February 1897
• Docket Number: No. 625,625
• Citation: 165 U.S. 311,41 L.Ed. 727,17 S.Ct. 366
• Parties: PRICE v. UNITED STATES
• Court: U.S. Supreme Court

165 U.S. 311

17 S.Ct. 366

41 L.Ed. 727

PRICE

v UNITED STATES.

No. 625.

February 15, 1897.

Warren E. Price, pro se.

Asst. Atty. Gen. Dickinson, for the United States.

Mr. Justice PECKHAM delivered the opinion of the court.

The plaintiff was indicted under section 3893 of the Revised Statutes, for depositing in the mails of the United States obscene, lewd, and lascivious matter. After trial, he was convicted, and sentenced to 18 months' imprisonment in the California State Prison, and to pay a fine of $500. Upon writ of error sued out from this court, the record is now before us for review.

The indictment contained five counts, the first, second, and fourth of which charged the defendant with giving information as to where obscene matter might be obtained, and the third and fifth charged him with depositing such matter in the mails. A motion was made before trial to quash all the counts of the indictment, and it was granted as to the first, second, and fourth, and denied as to the third and fifth counts. The defendant then demurred to the indictment, on the ground that it did not charge that the matter was nonmailable, nor did it charge that it was obscene or lewd or lascivious or of an indecent character. The demurrer was overruled, and the parties went to trial. After his conviction of the offense stated in the third and fifth counts, the defendant moved in arrest of judgment, on the ground, among other things, that it was nowhere in either of these counts alleged that the book or pamphlets, or either of them, were in fact obscene, lewd, or lascivious, or of an indecent character, and that they were nonmailable matter. The motion was overruled, and the defendant sentenced as above stated.

There are but two grounds upon which the sufficiency of the indictment is attacked; the first being that there is no direct allegation in either count that the defendant knew that the book that he deposited in the mail was obscene or lewd or lascivious, the only charge being, as is claimed, that he knowingly deposited a book the contents of which were, as a matter of fact, lewd and lascivious, the point being the alleged absence of any charge that he knowingly deposited a book which in fact was obscene, lascivious, and lewd, and which he knew was of that character.

The further ground is taken that there is in truth no allegation that the matter was obscene or lewd or lascivious, but the indictment contains nothing more than a mere expression of the opinion of the pleader that it was so obscene as to be unfit for repetition in the indictment.

We think there is no force in either contention. The plain meaning of the indictment is that the defendant deposited in the mails a book which he knew to be obscene, and that in truth it was obscene, and so much so as to render it improper and offensive to place the same upon the public record of the court. The indictment is substantially like the one which we held to be sufficient in Rosen's Case, 161 U. S. 29, 16 Sup. Ct. 434. The indictment in that case, as it is set forth in the report, states that the accused, on the 24th day of April, 1893, within the Southern district of New York, 'did unlawfully, willfully, and know- ingly deposit and cause to be deposited in the post office of the city of New York, for mailing and delivery by the post-office establishment of the United States, a certain obscene, lewd, and lascivious paper, which said paper then and there, on the first page thereof, was entitled 'Tenderloin Number, Broadway,' and on the same page were printed the words and figures following, that is to say: 'Volume 11, number 27; trade-mark, 1892; by Lew Rosen. New York, Saturday, April 15, 1893; ten cents a copy, $4.00 a year, in advance;' and thereupon, on the same page, is a picture of a cab, horse, driver, and a figure of a female, together (underneath the said picture) with the word 'Tenderloineuse'; and the said paper consists of...