Tyomies Pub. Co. v. United States

Citation211 F. 385
Decision Date03 March 1914
Docket Number2505.
PartiesTYOMIES PUB. CO. et al. v. UNITED STATES.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

[Copyrighted Material Omitted]

Nicholas Klein, of Cincinnati, Ohio, and W. A. Burritt, of Hancock Mich. (J. I. Sheppard, of Ft. Scott, Kan. of counsel), for plaintiffs in error.

Fred C Wetmore, U.S. Atty., of Grand Rapids, Mich., and E. J. Bowman, Asst. U.S. Atty., of Greenville, Mich.

Before KNAPPEN and DENISON, Circuit Judges, and DAY, District Judge.

DAY District Judge.

The plaintiffs in error were convicted in the District Court of violations of section 211 of the Penal Code of the United States. The indictment contained three counts, but on the trial the first count was withdrawn and the jury was instructed that as to plaintiff in error John Salminen only the third count of the indictment should be considered.

The indictment in count 2 charged that the Tyomies Publishing Company, a corporation, and John Nummivuori, business manager of the corporation, did on the 24th of April, 1912, at the city of Hancock, Mich., knowingly and unlawfully deposit and cause to be deposited in the post office at Hancock about 3,000 copies of a publication known as 'Lapatossu,' printed in the Finnish language, containing a certain obscene, lewd, filthy, and indecent picture, identified in the indictment.

In count 3 the indictment charged that the Tyomies Publishing Company, and John Nummivuori, business manager, and John Salminen, editor, on the 13th of December, 1912, at Hancock, Mich., knowingly and unlawfully deposited and caused to be deposited in the post office about 3,000 copies of said publication 'Lapatossu,' containing a certain obscene, lewd, filthy, and indecent picture, identified in the indictment. Each of the pictures was identified by reference to the date of publication borne by the issue in which, and to the page thereof on which, the picture appears as well as by the dialogue connected therewith.

Pleas of not guilty were entered for each of the defendants; a motion to quash the indictment was overruled; and a motion to direct a verdict in favor of the defendants at the close of the government's testimony was overruled. The defendants were found guilty by the jury and sentence imposed. No exceptions were taken to the charge of the court, aside from the court's failure to charge certain requests submitted by the defendants.

It is urged that section 211 of the Penal Code is unconstitutional because it is an ex post facto law and because it abridges the freedom of the press. Section 211 was not enacted after the commission of the offense charged in the present case, nor has the situation changed in any respect to the disadvantage of the accused.

The section of the statute under consideration does not conform to the settled definition of an ex post facto law. Duncan v. Missouri, 152 U.S. 382, 14 Sup.Ct. 570, 38 L.Ed. 485; Thompson v. Utah, 170 U.S. 351, 18 Sup.Ct. 620, 42 L.Ed. 1061; Kring v. Missouri, 107 U.S. 235, 2 Sup.Ct. 443, 27 L.Ed. 506.

The statute is not in derogation of the constitutional rights and privileges of the defendants as publishers of a daily newspaper. The constitutional guaranty of a free press cannot be made a shield from violation of criminal laws which are not designed to restrict the freedom of the press, but to protect society from acts clearly immoral or otherwise injurious to the people. Ex parte Jackson, 96 U.S. 727, 736, 24 L.Ed. 877; In re Rapier, 143 U.S. 110, 133, 134, 12 Sup.Ct. 374, 36 L.Ed. 93; Public Clearing House v. Coyne, 194 U.S. 497, 506, 24 Sup.Ct. 789, 48 L.Ed. 1092; Knowles v. United States, 170 F. 409, 411, 95 C.C.A. 579; United States v. Journal Co. (D.C.) 197 F. 415, 418.

It is urged that the statute does not prescribe a standard by which the crime can be ascertained.

With the addition of certain elements which do not vary the test to be applied, section 211 of the Penal Code is essentially the same as section 3893 of the Revised Statutes of the United States (U.S. Comp. St. 1901, p. 2658), concerning which Mr. Justice Harlan, in the case of Rosen v. United States, 161 U.S. 29, 16 Sup.Ct. 434, 480, 40 L.Ed. 606, said:

'The inquiry under the statute is whether the paper charged to have been obscene, lewd, and lascivious was in fact of that character; and if it was of that character, and was deposited in the mail by one who knew or had notice at the time of its contents, the offense is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails. Congress did not intend that the question as to the character of the paper should depend upon the opinion or belief of the person who, with knowledge or notice of its contents, assumed the responsibility of putting it in the mails of the United States. The evils that Congress sought to remedy would continue and increase in volume if the belief of the accused as to what was obscene, lewd, and lascivious was recognized as the test for determining whether the statute has been violated. Every one who uses the mails of the United States for carrying papers or publications must take notice of what, in this enlightened age, is meant by decency, purity, and chastity, in social life, and what must be deemed obscene, lewd, and lascivious.'

The specific argument that the criminality of the act charged is made to depend, not upon a clear expression of the statute, but upon standards personal to the jurors unknown at the time the act was committed, is answered by what was said in Nash v. United States, 229 U.S. 373, 376, 377, 33 Sup.Ct. 780, 57 L.Ed. 1296.

It is urged that under section 211 the offense is not restricted to depositing in the United States mail, but makes it an offense to deposit nonmailable matter anywhere. It is plain that only the post office establishment of the United States was contemplated by Congress, and, as the post office establishment was found to have been employed by the defendants in this case under consideration, surely no objection can be raised by them to this wording of the statute.

It is contended that the statute is insufficient because it does not say that the persons who shall deposit nonmailable matter for mailing are guilty of a felony or misdemeanor. The statute does impose punishment by fine or imprisonment or both; this punishment is clearly meant to be imposed by the courts. The offense described by section 211 is made a felony by section 335 of the Penal Code of the United States. The nonmailable matter, whose depositing is made punishable, is that expressly defined in the section providing a punishment.

It is urged that the indictment is faulty because it seeks to charge these defendants with the commission of a crime, without referring to the entire publication of which the alleged nonmailable pictures were only a portion; the language accompanying the pictures not being alleged to be obscene. The statute distinctly makes it a crime to mail a picture of a lewd, lascivious, obscene, or filthy character, and it was only necessary that the jury should consider so much of the context as was essential to a proper understanding of what was claimed to be in violation of the statute. United States v. Bennett, Fed. Cas. No. 14,571; Burton v. United States, 142 F. 57, 64, 73 C.C.A. 243.

The indictment alleged that defendants knowingly deposited the...

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