United States v. Gaylord
| Decision Date | 01 July 1883 |
| Citation | 17 F. 438 |
| Parties | UNITED STATES v. GAYLORD. |
| Court | U.S. District Court — Southern District of Illinois |
Mr Connolly, Dist. Atty., for the United States.
Palmers Robinson & Shutt, for defendant.
At the last January term of the district court the defendant was indicted for a violation of section 3893 of the Revised Statutes, as amended by the act of July 12, 1876. A motion was made by the defendant to quash the indictment, which was overruled; and, being arraigned before the court, he pleaded guilty; whereupon a motion was made in arrest of sentence which, being denied by the court, the defendant was sentenced to imprisonment in one of the penitentiaries of the state. The defendant now makes an application to this court for a writ of error under the act of 1879.
There can be no doubt that it is a proper case for a writ of error to issue; but, by agreement between the counsel of the parties, the only question in controversy has been submitted to the court, and it is understood that, if the court shall be of opinion that the order of the district court as to the sufficiency of the indictment was correct, the writ of error need not issue, but otherwise that it may issue, and the necessary order be made for another trial of the case, or for the discharge of the defendant from imprisonment upon the ground that he had been wrongfully convicted. The indictment contains three counts. There is an allegation that the defendant did unlawfully and knowingly deposit, ( the time,) for mailing and delivering in the post-office, (naming it,) a certain obscene, lewd, and lascivious writing addressed to a female person, (naming her,) at a certain other post-office, (naming it.) In all the counts what was thus deposited and addressed is described as 'an obscene, lewd, and lascivious writing, purporting to be a letter, * * * and which said writing was then and there inclosed in a letter envelope.'
The only objection taken to the indictment on the motion to quash, and also in arrest of the sentence of the court, was that what is thus described is not named in the statute, and does not come within the terms of the law as non-mailable matter. The language of the statute is: 'Every obscene, lewd, or lascivious book, pamphlet, picture, paper, writing, print, or other publication of an indecent character is hereby declared to be non-mailable matter, * * * and shall not be conveyed in the mails, nor delivered from any post-office, nor by any letter-carrier. ' And the statute adds that every person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, anything thus declared to be non-mailable matter, shall be deemed guilty of a misdemeanor, and subject to a fine or imprisonment, or both.
Is the offense described in the indictment within any one of the terms named in the statute; in other words, was it a book, pamphlet, picture, paper, writing, print, or other publication of an indecent character. The indictment states that the writing, purporting to be a letter, was so obscene in its character that the contents could not be set forth in the indictment. The only question, consequently, is whether it comes within the meaning of the statute.
The principal argument by the defendant is that, in the part of the section to which we must look for a description of the offense described in the indictment, the word 'letter' is not used, and it is insisted that what was put in the post-office by the defendant was a letter; and as, in another part of the section, the word 'letter' is named, in speaking of what shall not be put upon the envelope of a letter, congress could not have intended by the language used to prevent an obscene letter from being carried in the mail. The word 'writing,' now in the statute, was placed there by the amendment of 1876, not being in the previous statutes upon the subject. The statute had previously declared non-mailable, any obscene, lewd, or lascivious book, pamphlet, picture, print, or other publication of an indecent character, and any letter upon the envelope of which, or postal card upon which, indecent or scurrilous epithets were written or printed. The indictment describes it as a writing, purporting to be a letter, and perhaps it is a fair inference from the language used that it comes within the ordinary description of a letter, which we understand to be something written or printed, as a communication or an epistle, and sent by one person to another, with the address of the person to whom it is sent thereon. The indictment does not state that the letter was sealed, and that was not necessary in order to constitute it a letter. That is just as much a letter, if written and sent in an envelope from one person to another unsealed, as if sealed. It is a matter of daily observation that in our large cities letters are constantly posted without being sealed. They are still letters.
It is claimed on the part of the defense that this must have been 'a publication,' because the language of the statute is, 'or other publications;' so that, whether a book, pamphlet, picture, paper, writing, or print, in order to be within the meaning of the statute, it must be published; and it would follow, if a person should make an obscene picture on a piece of paper and send it in a letter through the mail to another person, no one knowing anything about the picture but the person making it and the person to whom it was addressed, that would not be within the meaning of the statute, not being 'published.' When we speak of a book, perhaps the ordinary understanding of that word would be that it was something published; and yet a book may be written or printed without publication; and pamphlets are often printed and not published. Indecent and obscene pictures are very frequently circulated privately, so that it might be doubtful whether they could in such case be considered as published.
On the assumption that when congress inserted, by the amendment of 1876, the word 'writing' in the statute it was intended that it should be a publication and be so limited it is difficult to understand what would be a writing in that view of...
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United States v. Males
...As the statute is highly penal, it ought not to be held to embrace language unless it is fairly within its letter and spirit. U.S. v. Gaylord, 17 F. 438; Thomas State, 103 Ind. 419, 2 N.E. 808; Dillard v. State, 41 Ga. 278; Bell v. State, 1 Swan, 42; Henderson v. State, 63 Ala. 193; State v......
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United States v. Wilson
...in writing from one person to another, of the character known as a 'letter,' was a 'writing,' within the meaning of the statute; U.S. v. Gaylord, 17 F. 438; U.S. Hanover, Id. 444; U.S. v. Britton, Id. 731; U.S. v. Morris, 18 F. 900; U.S. v. Thomas, 27 Fed. 682. In the following cases the co......
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United States v. Huggett
...requiring its decision of the question. The cases cited in the affirmative of the proposition, and sustaining the indictment, are U.S. v. Gaylord, 17 F. 438; U.S. v. Id. 444; U.S. v. Britton, Id. 731; U.S. v. Morris, 18 F. 900; and U.S.v. Thomas, 27 F. 682. Those in the negative, and agains......
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United States v. Martin
...following decisions held that private letters were embraced by the statute within the term 'writing:' U.S. v. Morris, 18 F. 900; U.S. v. Gaylord, 17 F. 438; U.S. v. Id. 444; U.S. v. Britton, Id. 731; U.S. v. Thomas, 27 F. 682. In this confused and conflicting condition of the decisions of t......