United States v. Brazeau

• Decision Date: 10 February 1897
• Docket Number: 2,467.
• Citation: 78 F. 464
• Parties: UNITED STATES v. BRAZEAU.
• Court: U.S. District Court — District of Rhode Island

78 F. 464

UNITED STATES v. BRAZEAU.

No. 2,467.

United States Circuit Court, D. Rhode Island.

February 10, 1897

Charles E. Gorman, U.S. Atty.

Hugh J Carroll, for defendant.

BROWN District Judge.

This is an indictment under section 3893 of the Revised Statutes, as amended by act of September 26, 1888. Upon motion to quash it is urged that the indictment, for depositing in a post office 100 copies of a newspaper containing an obscene article, is substantially defective, from the omission of an averment that the newspapers were addressed. No precedent for an indictment omitting this averment has been cited by counsel for the United States, or discovered upon an examination of a large number of indictments upon this statute, and upon similar statutes, set forth in reported cases and in books of precedents. The question arises therefore whether, without such usual averment, the offense is sufficiently charged.

The defendant contends that an intent to circulate the obscene article, and to have it reach persons known or unknown to the grand jury, must appear of record; that this indictment charges merely the depositing of newspapers; and that a newspaper without an address or direction for mailing is incapable of effecting this intent. Upon behalf of the United States it is claimed that the address is a mere matter of description, and that the newspapers and the obscene article are sufficiently identified and described otherwise than by the address, and that all the essential ingredients of the offense are sufficiently set forth in the language of the statute.

The rule that an indictment following the words of the statute is sufficient is subject to the qualification that 'all the material facts and circumstances embraced in the definition of the offense must be stated, or the indictment will be defective. No essential element of the crime can be omitted without destroying the whole pleading. ' 'The omission cannot be supplied by intendment or implication, and the charge must be made directly, and not inferentially ' U.S. v. Hess, 124 U.S. 483, 8 Sup.Ct. 571; Evans v. U.S., 153 U.S. 584, 587, 14 Sup.Ct. 934, 939. The statute does not make criminal the mere depositing in a post office of obscene matter, even though it be 'knowingly' deposited; i.e. deposited with knowledge of its obscene character. The substance of the offense is the employment of, or attempt to employ, the mails for the transmission of obscene matter. The depositing prohibited by this statute is depositing 'for mailing or delivery.' There must be a purpose or intent in the act of depositing, and an adaptation, apparent at least, in the thing deposited to effect that intent. A newspaper without address or direction for delivery is not even apparently capable of effecting that intent. So long as anything remained to be done to make the newspapers a proper subject of deposit in the mail (see U.S. v. Taylor, 37 F. 200), or at least an apparently proper subject of deposit, so as to put in motion the postal operations of 'mailing or delivery' (see Goode v. U.S., 159 U.S. 671, 16 Sup.Ct. 136), the offense was incomplete.

The only language which by any possibility can be considered as including an allegation that the newspapers were capable of mailing is the averment that they were deposited 'for mailing and delivery.' But this is not a direct and certain allegation. To give it the required construction resort must be had to inference, and to the illogical inference that, because the newspapers were deposited for a certain purpose, they were deposited under such conditions as to...