United States v. Clarke

• Decision Date: 16 April 1889
• Citation: 38 F. 500
• Parties: UNITED STATES v. CLARKE.
• Court: U.S. District Court — Eastern District of Missouri

38 F. 500

UNITED STATES v. CLARKE.

United States District Court, E.D. Missouri, Eastern Division.

April 16, 1889

Chester H. Krum, for defendant.

THAYER J.

The indictment in this case is in the usual form. One of the counts, which may be taken as a sample of all, alleges that the defendant knowingly deposited for mailing in the post-office at the city of St. Louis, a certain obscene lewd, and lascivious pamphlet of an indecent character entitled, 'Dr. Clarke's Treatise on Venereal, Sexual Nervous, and Special Diseases,' which was addressed to 'Mr. W. E. Deer, Bluff Mills, Indiana,' and is so obscene, lewd, and lascivious that said pamphlet would be offensive if set forth in full in the indictment. Defendant demurs to the indictment on the ground-- First, that the pamphlet is not obscene; and, secondly, on the ground that even if it is unfit for general circulation, yet that it may be lawfully sent through the mails to certain persons, and that the indictment is defective because it does not show by proper averments that the publication was not mailed to such persons. The demurrer, therefore, assumes that the publication in question is a part of the record, and that the court may properly determine on demurrer whether it is or is not obscene. This position I regard as untenable. The practice now become common in this class of cases, of describing a publication in an indictment in such manner that it may be identified, and averring that it is obscene,-- so obscene that it is unfit to be spread on the record,-- was adopted originally, in part at least, for the purpose of preventing obscene and indecent matter from becoming a part of a permanent public record. The practice was justified on that ground in the case of Com. v. Holmes, 17 Mass. 337. As the alleged obscene publication cannot be regarded as a part of the record, it is manifest that it is not touched by the demurrer. The question whether it is obscene in such sense as to be non-mailable under any and all circumstances, or whether it might be mailed to some persons, is not before the court for determination at this time. The reason last assigned for overruling the demurrer was not suggested at the hearing, and apparently was not relied upon by the district attorney.

The discussion took a wide range. The publication complained of was exhibited to the court, and contrasted with a certain standard medical journal, and much was said on the point whether the publication was obscene in the sense of the common law, and whether common-law tests of obscenity are applicable to the case, and as to whether the non-mailable character of the publication depends to any extent upon the person, or class of persons, to whom it was addressed. In view of the discussion at the hearing of the demurrer, and the fact that the case remains to be tried, it will not be out of place to express an opinion on some of these points. In the first place, I remark that the words 'obscene,' 'lewd,' 'lascivious,' and 'indecent,' as used in the federal statute, section 3893, as amended by act Sept. 26, 1888, (25th St.at Large, p 496,) have the meaning that have been imputed to them at common law in prosecutions for publishing obscene libels. Whether a particular publication is obscene, and for that reason unmailable, must be determined by common-law tests. At this point, however, arises the question whether it is the province of the court or jury to determine with respect to a given publication if it is obscene or otherwise. I am of the opinion that the ultimate solution of that question rests with the jury to the same extent that in civil prosecutions for libel, and in criminal prosecutions since the declaratory act of the 32 Geo.III.c. 60, the question whether an article is libelous is for the jury, under proper directions given by the court. Parmiter v. Coupland, 6 Mees.& W. 105; Baylis v. Lawrence, 11 Adol.& E. 920; 3 State Tr. 37; Moxon's Case, 2 Towns.St.Tr. 356; Starkie, Sland. & Lib. (Wood's Notes) Secs. 556 and 195. The court must of course define the terms 'obscene,' 'lewd,...