Tubbs v. United States
| Decision Date | 05 November 1900 |
| Docket Number | 1,400. |
| Citation | 105 F. 59 |
| Parties | TUBBS v. UNITED STATES. |
| Court | U.S. Court of Appeals — Eighth Circuit |
The defendant was indicted, under section 3893 of the Revised Statutes of the United States, for depositing in the post office, to be mailed and delivered, obscene, lewd, and lascivious letters, and letters giving information where how, and of whom articles and things could be obtained for the procuring of an abortion. The first trial of the case was a mistrial. 94 F. 356. A second indictment was preferred against the defendant, which was consolidated with the second, fourth, and fifth counts of the first indictment; a demurrer to the other counts of that indictment having been sustained. On the second trial the defendant was convicted on the fifth count of the first indictment, and the first second, third, and fourth counts of the second indictment and sentenced to imprisonment at hard labor for two years on the conviction under each of the counts, the sentences to run concurrently. The defendant reserved exceptions at the trial and has removed the case into this court by writ of error.
Frank R. Aikens (Harold E. Judge, on the brief), for plaintiff in error.
William G. Porter (James D. Elliott, on the brief), for the United states.
Before CALDWELL, SANBORN, and THAYER, Circuit Judges.
CALDWELL Circuit Judge, after stating the case as above.
On the trial objection was made to the introduction of any evidence by the government in support of the second, fourth, and fifth counts on the first indictment upon the ground 'that they do not state facts sufficient to constitute a public offense or a violation of the statutes of the United States, and that they do not, nor does either of them, apprise the defendant, with a sufficient directness or certainty, of the nature of the charge against him. ' A like objection was made to the introduction of any evidence in support of the first, third, and fourth counts of the second indictment, 'for the reason that it appears from each of them that neither of them contains matter giving information where, how, and of whom might be obtained an article or medicine designed and intended for the procuring of an abortion. ' The counts of the first indictment are alike, and, omitting the formal parts, charged that the defendant did 'unlawfully, willfully, and knowingly deposit, and cause to be deposited, in a post office of the United States, to wit, the post office at Alcester, in the county of Union, state of South Dakota, for mailing and delivery by the post-office establishment of the United States, certain nonmailable matter, to wit, a letter inclosed in an envelope, and which said letter was obscene, lewd, and lascivious, and of an indecent character, and is offensive, and unfit to be set forth in this instrument, and to be spread at length upon the records of this honorable court, wherefore the grand jurors aforesaid do not set forth the same in this indictment, and which said envelope containing the letter aforesaid was then and there directed to and addressed as follows, that is to say, 'Miss Clara Saltness, Alcester, S.D.'; he, the said Richard A. Tubbs, then and there well knowing the contents of the said letter, and the character thereof, and well knowing the said letter to be obscene, lewd, lascivious, and of an indecent character.'
One contention is that these counts do not charge a public offense, because the letters themselves alleged to be obscene, lewd, lascivious, and indecent are not set out, and because the description of the letters is not so definite and precise as to enable the defendant to avail himself of a plea of former conviction or acquittal. These objections are answered by repeated decisions of the supreme court. The rule is stated in Rosen v. U.S., 161 U.S. 29, 40, 16 Sup.Ct. 434, 438, 40 L.Ed. 606, 609. In that case Mr. Justice Harlan, delivering the judgment of the court, said:
'The doctrine to be deduced from the American cases is that the constitutional right of the defendant to be informed of the nature and cause of the accusation against him entitles him to insist, at the outset, by demurrer, or by motion to quash, and, after verdict, by motion in arrest of judgment, that the indictment shall apprise him of the crime charged with such reasonable certainty that he can make his defense and protect himself after judgment against another prosecution for the same offense; that this right is not infringed by the omission from the indictment of indecent and obscene matter alleged as not proper to be spread upon the records of the court, provided the crime charged, however general the language used, is yet so described as reasonably to inform the accused of the nature of the charge sought to be established against him; and that, in such case, the accused may apply to the court before the trial is entered upon for a bill of particulars, showing what parts of the paper would be relied on by the prosecution as being obscene, lewd, and lascivious, which motion will be granted or refused, as the court, in the exercise of a sound legal discretion, may find necessary to the ends of justice.'
Defendants in this class of cases commonly affect ignorance of what they are indicated for, and great apprehension lest they shall be indicted a second time for the very same offense, and be unable to prove by the record a former conviction or acquittal. No case of the kind has ever occurred, or is ever likely to occur, but the affected apprehension of each defendant that it may occur, but the affected apprehension of each defendant that it may occur in his case is perennial. The supreme court has put a quietus on these stock objections by repeatedly pointing out that the defendant may apply for a bill of particulars (Rosen v. U.S., 161 U.S. 29, 34, 35, 39-41, 16 Sup.Ct. 434, 480, 40 L.Ed. 606; Durland v. U.S., 161 U.S. 306, 315, 16 Sup.Ct. 508, 40 L.Ed. 709), and that parol evidence is always admissible, and sometimes necessary, to establish the defense of prior conviction or acquittal (Dunbar v. U.S., 156 U.S. 185, 191, 15 Sup.Ct. 325, 39 L.Ed. 390; Durland v. U.S., 161 U.S. 306, 314, 315, 16 Sup.Ct. 508, 40 L.Ed. 709).
It is common learning that, where the matter is too obscene to be spread upon the records of a court of justice, it may be omitted from the indictment upon an allegation to that effect. Rosen v. U.S., 161 U.S. 29, 16 Sup.Ct. 434 480, 40 L.Ed....
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