United States v. Clarke

• Decision Date: 07 November 1889
• Citation: 40 F. 325
• Parties: UNITED STATES v. CLARKE.
• Court: U.S. District Court — Eastern District of Missouri

40 F. 325

UNITED STATES v. CLARKE.

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

November 7, 1889

George D. Reynolds, Dist. Atty.

C. H Krum, for defendant.

THAYER J.

If it should be conceded that counts Nos. 2, 3, 5, 6, 8, and 9 are defective because the description of the alleged obscene publications referred to therein is too indefinite, yet that would not warrant an order arresting judgment on counts Nos 1, 4, 7, in which the indecent pamphlet complained of is described with sufficient certainty. It must be borne in mind that the verdict in this case is not a general verdict of 'guilty.' It is a verdict that specifically finds the defendant 'guilty on all the counts contained in the indictment. ' The jury expressly declare that the charge laid in each count is proven. In such cases the rule is that if any of the counts are good, judgment upon the verdict as to such counts cannot be arrested. If some counts of an indictment are good, and others bad, and the verdict is merely a general verdict of guilty, so that it is impossible to say whether the jury intended the finding to apply to one count, or to all, it might be the duty of the court (according to the authorities cited by defendant's counsel) to arrest the judgment on all the counts, if, during the trial, the court's attention was called to the defective counts, and it was asked to withdraw the same from the consideration of the jury, and it refused to do so. This disposes of the motion in arrest, so far as it relates to counts Nos. 1, 4, and 7, which are admitted to contain a sufficient description of the obscene pamphlet in those counts mentioned.

I am aware, however, that, if counts Nos. 2, 3, 5, 6, 8, and 9 are bad because they do not contain an adequate description of the two obscene papers or circulars in those counts referred to, then, inasmuch as the court permitted such papers to be read to the jury, and inasmuch as they were only admissible under the defective counts, such evidence may have prejudiced the finding on counts 1, 4, and 7, and in that event the motion for a new trial as to the latter counts may be tenable. It seems necessary, therefore, to determine whether any of the counts are defective by reason of an insufficient description of the indecent papers or circulars on which the counts are founded. It is manifest that an indictment under section 3892 for depositing an obscene publication or print in the mail ought to describe the publication or print so...