Rodd v. United States, 11421.

• Decision Date: 16 December 1947
• Docket Number: No. 11421.,11421.
• Citation: 165 F.2d 54
• Parties: RODD v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

165 F.2d 54 (1947)

RODD v. UNITED STATES.

No. 11421.

Circuit Court of Appeals, Ninth Circuit.

December 16, 1947.

Greenbaum, Wolff & Ernst, Alexander Lindey and Mervin Rosenman, all of New York City, and A. L. Wirin and Fred Okrand, both of Los Angeles, Cal., for appellant.

James M. Carter, U. S. Atty., and Ernest A. Tolin, William Strong, and Paul Fitting, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.

Before MATHEWS, STEPHENS and ORR, Circuit Judges.

MATHEWS, Circuit Judge.

Appellant was indicted under § 245 of the Criminal Code, 18 U.S.C.A. § 396.¹ The indictment was in two counts. Count 1 alleged: "On or about December 31, 1945, appellant did knowingly and feloniously cause to be deposited with a common carrier, to-wit, National Carloading Corporation, for carriage from Brooklyn, State of New York, to San Diego, San Diego County, State of California, within the Southern Division of the Southern District of California, one hundred copies of a certain book, entitled `Call House Madam' by Serge G. Wolsey, contained in wrappers addressed to Ye Olde Book Shoppe, 900 Broadway, San Diego, California, which book was obscene, lewd, lascivious and filthy."

Count 2 alleged: "On or about December 31, 1945, at San Diego, San Diego County, California, within the Southern Division of the Southern District of California, appellant did knowingly and feloniously cause to be taken from a common carrier, to-wit, National Carloading Corporation, one hundred copies of a certain book, entitled `Call House Madam' by Serge G. Wolsey, which book was obscene, lewd, lascivious and filthy, and which 100 copies of said book had been deposited with said common carrier on or about December 14, 1945, for carriage from Brooklyn, State of New York, to San Diego, San Diego, County, San Diego, California, in wrappers addressed to Ye Olde Book Shoppe, 900 Broadway, San Diego, California."

Appellant was arraigned, pleaded not guilty, waived jury trial, was tried by the court and was found guilty on both counts. Thereupon judgment was entered sentencing appellant on count 1, suspending the imposition of sentence on count 2 and, as to that count, placing appellant on probation. From that judgment this appeal is prosecuted.

Appellant contends that count 1 did not charge an offense; that the evidence did not warrant a finding of guilt as to either count; and that, having sentenced appellant on count 1, the court could not lawfully impose a separate sentence on count 2.

There is no merit in the contention that count 1 did not charge an offense. Count 1 charged an offense under § 245 of the Criminal Code, 18 U.S.C.A. § 396,² namely, the offense of knowingly causing to be deposited with a common carrier, for carriage from one State to another State, 100 copies of an obscene, lewd, lascivious and filthy book. It is true that count 1 failed to state that the offense was committed in the State and district wherein the indictment was found.³ Appellant, however, waived this defect by going to trial on the merits without raising any question of venue.⁴ In the court below, appellant did not, at any time, challenge the sufficiency of the indictment or any count thereof.

There is no merit in the contention that the evidence did not warrant a finding of guilt as to count 1. The evidence consists of a stipulation dated July 23, 1946; three exhibits attached to and made part of that stipulation; a stipulation dated August, 1946; an exhibit attached to and made part of that stipulation; and appellant's oral testimony. Exhibit 1, attached to the stipulation of July 23, 1946, is a copy of the book mentioned in count 1 — a book entitled "Call House Madam." An examination of the book shows it to be an obscene, lewd, lascivious and filthy book. The stipulation...