United States v. Clark

• Decision Date: 14 December 1888
• Citation: 37 F. 106
• Parties: UNITED STATES v. CLARK.
• Court: U.S. District Court — District of Minnesota

37 F. 106

UNITED STATES v. CLARK.

United States Circuit Court, D. Minnesota.

December 14, 1888

Geo. N Baxter and Henry C. Wood, for plaintiff.

Gould &amp Snow, for defendant.

BREWER J.

This is a motion in arrest of judgment.The indictment charges that the defendant did unlawfully and willfully, knowingly deposit and cause to be deposited for mailing and delivery, in a post-office of the United States, to-wit, the post-office at Wiscoy, in said district of Minnesota, a certain lewd obscene, and lascivious picture of an indecent character etc.The indictment does not separately charge both the knowingly depositing of something in the post-office, and also that the defendant knew that this which he deposited was obscene; and the point is made that the gist of the offense is that he knew the character of that which he deposited, and that, in the absence of such an allegation, the indictment is defective.The indictment follows the statute.That, of course, is not always conclusive, for it is settled by the supreme court of the United States that it is not sufficient in an indictment 'to set forth the offense in the words of the statute, unless those words of themselves fully directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offense intended to be punished; and the fact that the statute in question, read in the light of the common law and of other statutes on like matter, enables the court to infer the intent of the legislature, does not dispense with the necessity of alleging all the facts necessary to bring the case within that intent.U.S. v. Carll,105 U.S. 611, and cases cited.Yet there is always a presumption that the language of the statute fully describes the offense intended to be punished, and consequently that an indictment using that language also fully describes the offense.Now, the statute(section 3893, Rev. St.) declares that every obscene, lewd, or lascivious book, etc., is hereby declared to be non-mailable matter, and shall not be conveyed in the mails, nor delivered from any post-office, nor by any letter carrier; and then adds that any person who shall knowingly deposit anything declared to be non-mailable, shall be deemed guilty of a misdemeanor, etc.The matter mailed as described in the indictment was unquestionably non-mailable.The statute declares that whoever knowingly deposits non-mailable matter is guilty.The indictment alleges that the defendant knowingly deposited this non-mailable picture.Doubtless the question turns largely on whether the word, 'knowingly,' as used in the statute and...