Thomas v. State

• Citation: 103 Ind. 419, 2 N.E. 808
• Case Date: October 27, 1885
• Court: Supreme Court of Indiana

103 Ind. 419
2 N.E. 808

Thomas
v.
State.¹

Supreme Court of Indiana.

Filed October 27, 1885.

Appeal from Fayette circuit court.

T. D. Evans, for appellant.

L. H. Stanford, for appellee.

[2 N.E. 809]

Zollars, J.

Section 1997, Rev. St. 1881, is as follows:

“Whoever deposits in any post-office in this state, or places in charge of any person to be carried or conveyed, any lewd, obscene, indecent, or lascivious book, paper, pamphlet, drawing, lithograph, engraving, picture, daguerreotype, photograph, stereoscopic picture, model, cast, instrument, or article of indecent or immoral use, or instrument or article for procuring abortion or for self-pollution, or medicine for procuring abortion or preventing conception, or any circular, hand-bill, card, advertisement, book, pamphlet, or notice of any kind, or gives oral information, stating when, where, how, or of whom such article or things, or any of them, can be purchased or otherwise obtained, or knowingly receives the same, or any of them, with intent to carry or convey the same, or knowingly carries or conveys the same, except in the United States mail, shall be fined not more than five hundred dollars nor less than five dollars, to which may be added imprisonment in the county jail not more than six months, nor less than ten days.”

Upon an affidavit and information charging appellant with having violated this statute, in sending a lewd and obscene letter to a young girl, he was convicted, and fined five dollars. From this judgment he prosecutes this appeal. Under a proper motion below and assignment of errors here, appellant assails the affidavit and information. The first contention is that the mailing and sending of a letter, however lewd and obscene it may be, does not fall within the terms of the above statute, and that hence the affidavit and information do not charge an offense known to the law. The ground of this contention is that the word “paper” is the only word in the statute upon which any plausible argument to the contrary might be predicated, and that under the well-settled canons of construction, as applicable to criminal statutes, that word cannot be made to include letters from one person to another.

It is undoubtedly the rule that criminal statutes should receive a strict construction; but it is also the rule, as stated by Judge Drummond in the case of U. S. v. Gaylord, 17 Fed. Rep. 438, that it must be a reasonable construction, in reaching which must be considered the object the legislature had in view in the words used. The plain and manifest object of the legislature in the enactment of the above section, and the preceding and following sections of the statute, was to guard and protect the public morals by erecting barriers which the evil-minded, lewd, and lascivious may not safely pass. The moral worth of every community rests with the family. It is the source from which comes the ever-flowing current that brings with it lessons of probity and chastity. With that fountain-head corrupted, decay and overthrow will surely follow. It is there that the youth are taught that honesty and virtue are above price. It is there that the girls, in the innocence and purity of their youth, are nurtured and guarded against the wiles and intrigues of the wicked and the seducer. If they may be approached and insulted upon the streets with impunity by the vile and depraved, or if the same class may, with impunity, override the barrier that protects the home, and reach the young girls sheltered there, through the public mails, by letters

[2 N.E. 810]

sent to them which teach, or attempt to teach, them that voluptuousness is more to be desired than true womanhood, and that virtue had better be exchanged for sexual dissipation, then, indeed, there is a crying necessity for further legislation. We should be loth to come to the conclusion that the laws are thus defective. It is our duty, however, not to make, but to declare, the statute law as we receive it from the hands of the legislature, and did we feel that there is reasonable ground for doubt as to whether the above statute covers the offense here charged, we should do our duty and solve that doubt in favor of the accused.

After a careful examination and consideration, we are convinced that the word “paper,” as used in the statute, was intended to and, by fair construction, does cover a case like this. To give to the word “paper” its primary signification would be to destroy it, so far as concerns this statute. Primarily the word “paper” means a substance used for writing and printing on. Such a substance, of course, could neither be lewd, obscene, lascivious, nor indecent. The word, as used in the statute, has reference, not to the material, but to what may be upon it. Shall it be said, then, that the matter upon the paper must be printed matter, or that the paper must be what is commonly known as a newspaper or an illustrated paper? The statute gives no definition to the word “paper,” neither does it provide that the paper must be a newspaper or an illustrated paper.

So far as any definition is afforded by the statute, there is just as much authority for saying that the paper must be a written paper as that it must be a newspaper, or any other kind of printed paper. There is just as much authority for saying that the matter must be impressed upon the paper by a type-writer as that the paper shall be an illustrated paper. Clearly, we must look beyond the statute for a definition of the word “paper,” and must give to it such a definition as the legislature evidently intended it should have in the connection in which it is used, and thus carry out the intent of that body in the enactment of the law. The word “paper,” in its ordinary signification, may mean either a written or printed paper. It is a usual thing to speak of a person having written or read a paper upon some subject. That paper, as read, may be either in his own handwriting, or it may be by a type-writer, or in print, but it is still his paper, and means the same thing. And so it is usual to speak of a man's outstanding paper, in the way of notes, bills, or other obligations. They may consist partly of writing and partly of print, or entirely of one or the other, and yet they are his paper. The word “paper” is very frequently used in the Revised Statutes of 1881. Thus, the court may compel parties to produce any paper. Section 480. The clerk must indorse on papers the date of the filing. Section 483. He gets a fee for filing each paper, and for a copy thereof. Sections 5854-5859. The auditor is required to file papers. Section 5908. It is made a crime to alter any paper, secrete or take away any paper, or to steal any paper. Sections 1937-1939. Other sections use the word “paper” in a like sense. These sections, of course, refer to what are known as court papers, and usually such papers are written papers, but

[2 N.E. 811]

they are not always written, nor need they be. Frequently they are printed, and more frequently the type-writer is used. However that may be, they are still papers. Worcester gives as one of the definitions of paper, “any written paper or instrument; a writing;” and, further, “a printed sheet.” One of Webster's definitions is, “a printed or written instrument; a document, essay, or the like; a writing.”

In the case of State v. Jones, 36 Amer. Dec. 257, it was held that no material variance exists between an indictment for forgery and the proof adduced in support of it, where the indictment described the forged instrument as a paper writing, and the proof shows it to have been partly printed and partly written. The court said: “An instrument signed by a party is, in legal parlance, the paper writing of such a party. It is his signature to it which gives it that character, and not the body of the instrument. In a declaration on a note of hand, it is described as a note in writing, although every word except the signature may be in print. So a bond of a party, partly written and partly printed, is said to be the writing obligatory of the party executing it.” In the case of U. S. v. Gaylord, supra, Judge Drummond said: “Paper is a word of very extensive meaning. It may comprehend anything that has on it what is obscene, lewd, or lascivious.” These authorities fully support our conclusion that the word “paper” in our statute has reference to the written or printed matter, and that the matter may be either written or printed. The case last above cited arose under section 3893, Rev. St. U. S., which makes it unlawful to send through the mails any obscene, lewd, or lascivious book, pamphlet, picture, paper, writing, print, or other publication of an indecent character. The inhibitions in that statute thus far, it will be observed, are the same as in our statute, except the word “writing.” And while the case was made to turn upon that word, we think that the decision and reasoning of the court is an authority in support of a holding that the word “paper” in our statute includes a letter. In that case the indictment charged the defendant with having mailed a lewd, obscene, and lascivious letter. The point was made by the defendant that the indictment did not charge an offense, because in the statement of the inhibited articles in the statute the word “letter” is not used, and, for that reason, that the writing must be something in the nature of a publication. The court said: “A letter is certainly a writing. If addressed by one person to another, while we may call it a letter, it is also a writing, whether the characters are made with a pen, or by type, or in any other similar manner. A very common practice in writing letters at the present day is the use of the ‘type-writer,’ as it is termed. That would certainly be a writing, although the letters and words are marked by a machine upon a paper; and so if the words were printed with a pen instead of being made in a running or flowing hand. The mere fact that they were not written...