United States v. Dempsey
| Decision Date | 26 May 1911 |
| Docket Number | 489. |
| Parties | UNITED STATES v. DEMPSEY. |
| Court | U.S. District Court — Eastern District of Arkansas |
W. G Whipple, U.S. Atty., and Powell Clayton, Asst. U.S. Atty.
Lyman F. Reeder, for defendant.
The defendant, having been indicted for sending through the mails an obscene letter in violation of section 211 of the federal Penal Code (U.S. Comp. St. Supp. 1909, p. 1453), has demurred to the indictment upon the ground that the contents of the letter were not of the character prohibited by that section of the Penal Code. The letter was mailed in this district and addressed to a young lady in the state of Mississippi, and was as follows:
Assuming without deciding, that the contents of the letter were not of that character which would make it nonmailable, in view of the construction of section 3893, R.S.(U.S. Comp. St. 1901, p. 2658), in Swearingen v. United States, 161 U.S. 446, 451, 16 Sup.Ct. 562, 40 L.Ed. 765, that would still not be conclusive of this case, as the Penal Code amends that statute very materially, by adding, after the words 'every obscene, lewd, and lascivious,' the words 'and every filthy' book, pamphlet, picture, or letter.
In the Swearingen Case the court held that the words 'obscene,' 'lewd, and lascivious,' as used in section 3893, R.S., 'signify that form of immorality which has relation to sexual impurity, and has the same meaning as was given them at common law in prosecutions for obscene libel. ' If the intention of Congress had been to confine that statute to the offense as defined by the Supreme Court in that case, it would not have amended it by adding the words 'and every filthy.' This clearly demonstrates that in the opinion of Congress the use of the mails should be prohibited, not only to such letters, books, and pictures which are lewd and lascivious, but also to every filthy communication, book, or picture.
It is next claimed that the contents of the letter, while objectionable, are not obscene or filthy, within the meaning of the law. The law, as it has been settled by numerous decisions, and especially by the Circuit Court of Appeals for the Eighth Circuit, is that, while in prosecutions under this statute there is a preliminary question for the court to determine whether the...
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Tyomies Pub. Co. v. United States
...to enlarge the scope of the statute so as to cover a class of publications that were not included in the old section. United States v. Dempsey (D.C.) 188 F. 450. trial judge submitted the issue, as to whether or not this picture was filthy, to the jury, saying: 'By the term 'filthy' is mean......
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United States v. Journal Co., Inc.
... ... that it could not by any reasonable judgment be held to come ... within the prohibition of the law, then it becomes the duty ... of the court as matter of law to pass upon the same ... Knowles v. United States, 170 F. 409, 411, 95 C.C.A ... 579, and cases cited; United States v. Dempsey ... (D.C.) 188 F. 450. This right of the court to determine ... whether the particular writing or publication comes within ... the purview of the statute by appropriate instructions at the ... trial seems uncontroverted, and was clearly recognized in ... Swearingen v. United States, 161 U.S ... ...
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United States v. Davidson
...to be seen, and the construction of the new statute will be welcomed if it now inhibits the use of such expressions.' In United States v. Dempsey (D.C.) 188 F. 450, 451, court, reciting the language of the letter complained of, said: 'The letter was mailed in this district, and addressed to......
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United States v. Limehouse
...case. The government has called my attention to three cases construing the amended statute. The first case is that of United States v. Dempsey (D. C.) 188 F. 450. In that case, the court stated, in substance, that it was of opinion that Congress meant by the additional words to enlarge the ......