United States v. Dennett, 238.

Decision Date03 March 1930
Docket NumberNo. 238.,238.
Citation39 F.2d 564
CourtU.S. Court of Appeals — Second Circuit



Greenbaum, Wolff & Ernst, of New York City (Morris L. Ernst, Newman Levy, and Alexander Lindey, all of New York City, of counsel), for appellant.

Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Herbert H. Kellogg, James E. Wilkinson, and Emanuel Bublick, Asst. U. S. Attys., all of Brooklyn, N. Y., of counsel), for the United States.

Before SWAN, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above).

It is doubtless true that the personal motive of the defendant in distributing her pamphlet could have no bearing on the question whether she violated the law. Her own belief that a really obscene pamphlet would pay the price for its obscenity by means of intrinsic merits would leave her as much as ever under the ban of the statute. Regina v. Hicklin, L. R. 3 Q. B. 360; United States v. Bennett, Fed. Case No. 14,571; Rosen v. United States, 161 U. S. at page 41, 16 S. Ct. 434, 480, 40 L. Ed. 606.

It was perhaps proper to exclude the evidence offered by the defendant as to the persons to whom the pamphlet was sold, for the reason that such evidence, if relevant at all, was part of the government's proof. In other words, a publication might be distributed among doctors or nurses or adults in cases where the distribution among small children could not be justified. The fact that the latter might obtain it accidently or surreptitiously, as they might see some medical books which would not be desirable for them to read, would hardly be sufficient to bar a publication otherwise proper. Here the pamphlet appears to have been mailed to a married woman. The tract may fairly be said to be calculated to aid parents in the instruction of their children in sex matters. As the record stands, it is a reasonable inference that the pamphlet was to be given to children at the discretion of adults and to be distributed through agencies that had the real welfare of the adolescent in view. There is no reason to suppose that it was to be broadcast among children who would have no capacity to understand its general significance. Even the court in Regina v. Hicklin, L. R. 3 Q. B. at p. 367, which laid down a more strict rule than the New York Court of Appeals was inclined to adopt in People v. Eastman, 188 N. Y. 478, 81 N. E. 459, 11 Ann. Cas. 302, said that "the circumstances of the publication" may determine whether the statute has been violated.

But the important consideration in this case is not the correctness of the rulings of the trial judge as to the admissibility of evidence, but the meaning and scope of those words of the statute which prohibit the mailing of an "obscene, lewd or lascivious * * * pamphlet." It was for the trial court to determine whether the pamphlet could reasonably be thought to be of such a character before submitting any question of the violation of the statute to the jury. Knowles v. United States (C. C. A.) 170 F. 409; Magon v. United States (C. C. A.) 248 F. 201. And the test most frequently laid down seems to have been whether it would tend to deprave the morals of those into whose hands the publication might fall by suggesting lewd thoughts and exciting sensual desires. Dunlop v. United States, 165 U. S. at page 501, 17 S. Ct. 375, 41 L. Ed. 799; Rosen v. United States, 161 U. S. 29, 16 S. Ct. 434, 480, 40 L. Ed. 606.

It may be assumed that any article dealing with the sex side of life and explaining the functions of the sex organs is capable in some circumstances of arousing lust. The sex impulses are present in every one, and without doubt cause much of the weal and woe of human kind. But it can hardly be said that,...

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