Rinker v. United States

• Decision Date: 23 February 1907
• Docket Number: 2,323.
• Citation: 151 F. 755
• Parties: RINKER v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

151 F. 755

RINKER v. UNITED STATES.

No. 2,323.

United States Court of Appeals, Eighth Circuit.

February 23, 1907

David Overmyer, for plaintiff in error.

J. S West, Asst. U.S. Atty. (H. J. Bone, U.S. Atty., on the brief).

Before VAN DEVANTER and ADAMS, Circuit Judges, and PHILIPS, District judge.

VAN DEVANTER, Circuit Judge.

The plaintiff in error was tried and convicted in the District Court upon a charge of having deposited in the United States post office at Wakeeney, Kan., a certain obscene, lewd, and lascivious letter, in violation of section 3893 of the Revised Statutes, as amended September 26, 1888 (25 Stat 496, c. 1039, Sec. 2 (U.S. Comp. St. 1901, p. 2658)), and now seeks a reversal of the judgment because of alleged errors in the proceedings.

The first matter to be considered is the sufficiency of the indictment, which was challenged by a demurrer and by a motion in arrest of judgment, both of which were overruled. The objections now made to the indictment are: (1) It states that the offense was committed 'on or about' the 22d day of August, 1904, and thereby makes the time 'so uncertain as to cover any possible period. ' (2) It does not state that the purpose in depositing the letter in the post office was its mailing or delivery, and thus omits an essential element of the offense. (3) It does not state that the letter was of an indecent character, but only that it was obscene, lewd, and lascivious, and thus omits another essential element of the offense. (4) It does not set forth the letter or its substance. (5) Section 3893 is void because violative of the constitutional inhibition against excessive fines and cruel and unusual punishments. These will be considered in their order.

While the rules of criminal pleading require the time of the offense to be stated with precision, this is a matter of form, and not of substance, save in exceptional instances where the time is made an ingredient of the offense, for omitting such exceptional instances, it is not essential to prove the time as stated, but only that the offense was committed at some time before the finding of the indictment and within the statute of limitations. 1 Bishop's New Cr Proc. Sec. 386; Matthews v. United States, 161 U.S. 500, 16 Sup.Ct. 640, 40 L.Ed. 786; Ledbetter v. United States, 170 U.S. 606, 612, 18 Sup.Ct. 774, 42 L.Ed. 1162; Hardy v. United States, 186 U.S. 224, 22 Sup.Ct. 889, 46 L.Ed. 1137; United States v. Jackson (C.C.) 2 Fed. 502; United States v. Potter (C.C.) 56 F. 83, 95; United States v. Conrad (C.C.) 59 F. 458, 461; Hume v. United States, 55 C.C.A. 407, 414, 118 F. 689, 696; United States v. Howard (D.C.) 132 F. 325, 335; State v. Sammons, 95 Ind. 22; Kenney v. State, 5 R.I. 385; State v. Findley, 77 Mo. 338; State v. Brooks, 33 Kan. 708, 711, 7 P. 591. The time of its commission is not made an ingredient of this offense. The common understanding of the words 'on or about,' when used in connection with a definite point of time, is that they do not put the time at large, but indicate that it is stated with approximate accuracy. Besides, the indictment was found October 13, 1904, and shows that the letter was written August 19th of that year, so the charge that it was deposited in the post office is necessarily confined to the intervening period of a little less than two months. The uncertainty, therefore, falls far short of being as great as claimed, and we are clearly of opinion that it could not have operated to the prejudice of the defendant. Thus, the first objection is made plainly untenable by the curative provisions of section 1025, Rev. St. (U.S. Comp. St. 1901, p. 720), which declares that:

'No indictment * * * shall be deemed insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant.'

Does the indictment state that the letter was deposited in the post office for mailing or delivery? We think it does. True, it does not do so in the language of the statute, but that is not essential. As said by Mr. Justice Brewer, in Dunbar v. United States, 156 U.S. 185, 190, 191, 15 Sup.Ct. 325, 39 L.Ed. 390:

'But, although these are purely statutory offenses, it is unnecessary to resort to the very words of the statute. The pleader is at liberty to use any form of expression, provided only that he thereby fully and accurately describes the offense; and the entire indictment is to be considered in determining whether the offense is fully stated. * * * Any words of description which make clear to the common understanding the articles in respect to which the offense is alleged are sufficient.'

The indictment, in addition to stating that the defendant 'unlawfully and knowingly' deposited the letter in the United States post office, states that the letter was 'inclosed in an envelope which * * * was then and there stamped with a two-cent United States postage stamp so as to entitle it to transmission through the mails of the United States,' and 'was then and there addressed and directed to (the name will be omitted), City,' and that 'the mailing by him as aforesaid' was contrary to the statute, etc. Thus it is said that the defendant unlawfully and knowingly, which excludes any idea that the act was lawful or unintentional, deposited in the United States post office, the place for mailing letters to be transmitted through the mail, a letter inclosed in an envelope which was so addressed and stamped as to cause it to be transmitted through the mail when so deposited, and this is characterized as 'the mailing' of the letter. The plain and reasonable meaning of the charge is that the letter was deposited in the post office for mailing and delivery, and there can be no doubt that the defendant so understood it.

The third objection turns upon the language of the statute, that 'every obscene, lewd or lascivious book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character,' shall be nonmailable. The words 'of an indecent character,' qualify only the words 'other publication,' and, taken with them, include any publication, other than those specifically mentioned, which is similarly indecent; that is, obscene, lewd, or lascivious. We fully concur in the ruling of the Circuit Court of Appeals of the Sixth Circuit in Timmons v. United States, 30 C.C.A. 74, 85 F. 204, that in an indictment like this it is not essential that the letter be described as of an indecent character in addition to describing it as obscene, lewd, and lascivious. The case of United States v. Chase, 135 U.S. 255, 10 Sup.Ct. 756, 34 L.Ed. 117, relied upon by counsel, relates only to the meaning of the word 'writing,' and to the influence thereon of the words 'other publication.' The interpretation sought to be put upon it would render an indictment such as this insufficient, unless it described the letter as a 'publication' of an indecent character, in addition to calling it a letter and alleging that it was obscene, lewd, and lascivious. We think the case is not susceptible of such an interpretation and is without application to the one before us.

While neither the letter nor its substance is set forth in the indictment, it is therein alleged that the letter commenced 'Wakeeney, Kans., Aug. 19-04--Friend (the name will be omitted): I am sorry to inform you,' and concluded, 'I mean business and would like to tell you all sometime. Your friend,' and that it was 'obscene, lewd, and lascivious, and was so obscene, lewd, and lascivious as to be offensive to this honorable court and improper to spread upon the records thereof, or to be more fully set forth in this instrument. ' That it was sufficiently identified, we think, is plain. The fourth objection, however, goes beyond the matter of identification, and is that the allegations in respect of the character of the letter were mere legal conclusions, and, in any event, did not sufficiently inform the accused of the nature and cause of the accusation against him. Upon principle and authority the objection is untenable. The office of an indictment is to set forth the facts constituting the essential elements of the offense, but not the evidence. 1 Chitty, Cr. L. 231a; Wharton, Cr. Pl. & Pr. (9th Ed.) Sec. 158; Brown v. United States, 74 C.C.A. 214, 143 F. 60. The allegation in respect of the character of the letter was one of fact, the truth or falsity of which was to be determined by the evidence, which would probably consist of the letter and whatever properly affected its interpretation; and that allegation was no more a legal conclusion than was the one that the article deposited in the post office was a letter, or than would be an allegation of ownership or sale. In Grimm v. United States, 156 U.S. 604, 15 Sup.Ct. 470, 39 L.Ed. 550, where the charge was that the defendant had unlawfully used the mails for transmitting information to others of the place where obscene, lewd, and lascivious pictures could be obtained, the court held untenable the objection that the pictures or a full description of them should have been incorporated into the indictment, and declared that it was sufficient to allege their character and leave further disclosures to the introduction of evidence. And in Price v. United States, 165 U.S. 311, 17 Sup.Ct. 366, 41 L.Ed. 727, where the charge was that the defendant had unlawfully used the mails for transmitting a certain book 'the ...