United States v. Davis

• Citation: 38 F. 326
• Court: U.S. District Court — Western District of Tennessee
• Decision Date: 16 February 1889
• Parties: UNITED STATES v. DAVIS.

38 F. 326

UNITED STATES v. DAVIS.

United States Circuit Court, W.D. Tennessee.

February 16, 1889

H. W McCorry, Dist. Atty.

Thos M. Kemp, for defendant.

HAMMOND J.

The defendant has been found guilty of depositing a postal-card in the mails in violation of the postal laws of the United States, especially the act of June 18, 1888, c. 394, as amended by the acts of June 18, 1888, c. 394, and of September 26, 1888, c. 1039, 25 St. 187, Id. 496. The verdict, however, is subject to the opinion of the court whether the language of the postal-card falls within the denunciations of the statute. It clearly does. The act makes it criminal to deposit or cause to be deposited for mailing or delivering any postal-card containing delineations, epithets, terms, or language of an 'indecent, lewd, lascivious, obscene, libelous, scurrilous, defamatory, or threatening character, or calculated by the terms or manner or style of display, and obviously intended, to reflect injuriously upon the character or conduct of another. ' Since the extension by this act of former statutes on this subject there can be no doubt that that which is written on postal-cards must be clean and decent, and wholly free from the objections embodied in the language which has been quoted from the act of congress. Of course the courts must reasonably construe the words of the act, and not allow a hypercritical judgment to take advantage of the elasticity of the language used by congress, necessarily so general in its description of the offense, by bringing within the act words or thoughts that are only rude, impolite, or not in good taste according to the standard of decency prescribed by the purists in language and thought. But, on the other hand, obvious indecency of thought or expression, according to the common sense, should not escape the penalty of this statute, nor that which obviously is calculated and intended to reflect injuriously upon the character or conduct of him who complains or is mentioned in the writing. And not only may the precise words be weighed in determining the question, but the whole contest of the writing, and its evident spirit and tone, as they 'display' the meaning of those words, may be looked to by the court and jury.

Inasmuch as the act does not include 'profane' language in its description of the offense, except as it may be embraced in the other terms used by congress, and since in the common understanding the word 'damned' is called 'profanity,' it may be doubted if the use of that word was intended to be punished always. But this writer says: 'You can order car back, and be damned. ' In connection with the next phrase, which for sake of decency I shall not quote, although they have no dependence upon each other, and...