United States v. Hornick

• Decision Date: 18 May 1955
• Docket Number: Crim. No. 18042.
• Citation: 131 F. Supp. 603
• Parties: UNITED STATES of America v. Jay HORNICK and Jesse Traub.
• Court: U.S. District Court — Eastern District of Pennsylvania

131 F. Supp. 603

UNITED STATES of America v. Jay HORNICK and Jesse Traub.

Crim. No. 18042.

United States District Court E. D. Pennsylvania.

May 18, 1955.

Joseph L. McGlynn, Jr., Asst. U. S. Atty., Philadelphia, Pa., for United States.

Harry W. Steinbrook, Blanc, Steinberg, Balder & Steinbrook, Philadelphia, Pa., for defendants.

MARSH, District Judge.

After conviction by the court sitting without a jury of two counts of the offense of depositing in the mail information on how to obtain obscene pictures: § 1461, 18 U.S.C., the defendants filed motions in arrest of judgment and for a new trial.

The motion in arrest of judgment rests solely upon the ground that the statute is not sufficiently definite to apprise the defendants of the crime with which they are charged. In support of their position they cite Winters v. People of State of New York, 1948, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. We have no quarrel here with that case. In fact, the meaning we get from it indicates that this motion is without merit. The Winters case classified indefinite statutes into two categories: (1) "permissible uncertainty"; and (2) "unconstitutional vagueness". Into the second category the Court placed the statute there under consideration. This forbade "massing stories to incite crime". But into the first category the Court placed those statutes which dealt with "obscene, lewd, lascivious, filthy, indecent or disgusting" words which are used in "describing crimes" and which are "well understood through long use in the criminal law * * *." 333 U.S. at page 518, 68 S.Ct. at page 671. Therefore, we are constrained to hold that the statute in question, 18 U.S.C. § 1461 (1952), is sufficiently definite to sustain an indictment based thereon. See also Rosen v. United States, 1896, 161 U.S. 29, 40, 16 S.Ct. 434, 40 L.Ed. 606; and United States v. Rebhuhn, 2 Cir., 1940, 109 F.2d 512, 514. "If the question of the validity of the statute is to be reopened the Supreme Court must open it." United States v. Rebhuhn, supra.

Various arguments for a new trial are persuasively set forth in defendants' excellent and comprehensive brief. The crux of their contentions seems to be that the court was in error in concluding that the pictures sent by Railway Express were obscene. There is little to add to what we have already said in the finding of fact and the discussion accompanying them. That which is obscene will vary from case to case, and pictures which are in one setting works of art may, against a different background, be declared obscene. See Lynch v. United States, 7 Cir., 1922, 285 F. 162.

We observe that the import of carefully considered opinions relating to writings is that a vital feature of whether or not a particular book or article is obscene is the subjective intent of the author. The courts inquire into the purpose of the book or matter alleged to be obscene and the object of its progenitor in writing or assembling the material for sale and distribution. Thus if two different persons would write about the same matter or, as here, collect and distribute the same pictures, one book or group of pictures may be declared obscene and the other not. Facts above and beyond the actual subject matter may be determinative. See Parmelee v. United States, 1940, 72 App.D.C. 203, 113 F.2d 729; United States v. One Book Entitled Ulysses, D.C.S.D.N.Y.1933, 5 F.Supp. 182, affirmed by opinion, 2 Cir., 1934, 72 F.2d 705.

Weighing heavily against the defendants at bar are the two advertising circulars sent in sequence through the mails.¹ This familiar plan capitalizes on a human trait to sample forbidden fruit. The preliminary circular was certainly designed to encourage prospects, including the adolescent and perverted, to purchase "Sex-sational" pictures. The succeeding circular, accompanying delivery of the first group of pictures (the obscenity of which we doubted), was mailed to "Our Exclusive Mailing List Customers". It solicited orders of "Better" pictures which "cannot be...