United States v. Kennerley

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation209 F. 119
PartiesUNITED STATES v. KENNERLEY.
Decision Date01 December 1913

209 F. 119

UNITED STATES
v.
KENNERLEY.

United States District Court, S.D. New York.

December 1, 1913


[209 F. 120]

John Neville Boyle, of New York City, for the United States.

John L. Lockwood, of New York City, for defendant.

HAND, District Judge (after stating the facts as above).

It seems to have been thought in U.S. v. Bennett, 16 Blatch. 338, 351, Fed. Cas. No. 14,571, that in an indictment of this sort the question whether the case must go to the jury could be raised in advance of the trial by inspection of the book, after it had been made a part of the record, by bill of particulars. However, in Dunlop v. U.S., 165 U.S. 486, 491, 17 Sup.Ct. 375, 376 (41 L.Ed. 799), the Supreme Court said that the book does not ever become a part of the record, and that therefore, 'if the indictment be not demurrable upon its face, it would not become so by the addition of a bill of particulars. ' The same rule is laid down in U.S. v. Clarke (D.C.) 38 F. 500. It is a little questionable in my mind whether Mr. Boyle's consent that the book should be considered as a part of the indictment really effects any more than if it had been produced by bill of particulars. However, as the result from any point of view is the same, I have considered the case as though the book had been set out in extenso.

Whatever be the rule in England, in this country the jury must determine under instructions whether the book is obscene. The court's only power is to decide whether the book is so clearly innocent that the jury should not pass upon it at all. U.S. v. Clarke (D.C.) 38 F. 500; U.S. v. Smith (D.C.) 45 F. 478. The same question arises as would arise upon motion to direct a verdict at the close of the case. Swearingen v. U.S., 161 U.S. 446, 16 Sup.Ct. 562, 40 L.Ed. 765, did not decide that the court is finally to interpret the words, but that matter was left open, because the instructions in any case misinterpreted the statute. The question here is, therefore, whether the jury might find the book obscene under proper instructions. Lord Cockburn laid down a test in Reg. v. Hicklin, L.R. 3 Q.B. 36, in these words:

'Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.'

That test has been accepted by the lower federal courts until it would be no longer proper for me to disregard it. U.S. v. Bennett, 16...

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77 practice notes
  • Giannini, In re, Cr. 11446
    • United States
    • United States State Supreme Court (California)
    • November 14, 1968
    ...the compromise between candor and shame at which the community may have arrived here and now.' (United States v. Kennerley (S.D.N.Y.1913) 209 F. 119, 121 (Hand, J.).) Indeed, this compromise is inherent in [69 Cal.2d 579] elements of current definitions of obscenity, including 'customary li......
  • Smith v. United States, No. 75-1439
    • United States
    • United States Supreme Court
    • May 23, 1977
    ...84 S.Ct., at 1680 (opinion of Brennan, J.); Roth v. United States, 354 U.S., at 487 n. 20, 77 S.Ct., at 1310; United States v. Kennerley, 209 F. 119, 121 (S.D.N.Y.1913) (L. Hand, J.) (obscenity should be determined in accordance with the "present critical point in the compromise between can......
  • California v. Rue, No. 71-36
    • United States
    • United States Supreme Court
    • December 5, 1972
    ...that the obscenity vel non of a piece of work could be judged by examining isolated aspects of it. See, e.g., United States v. Kennerley, 209 F. 119 (1913); Commonwealth v. Buckley, 200 Mass. 346, 86 N.E. 910 (1909). But in Roth we held that '(t)he Hicklin test, judging obscenity by the eff......
  • Burke v. Kingsley Books, Inc.
    • United States
    • United States State Supreme Court (New York)
    • June 13, 1955
    ...in every land and clime, does not render the statutory definition meaningless. See Learned Hand, J., in United States v. Kennerley, D.C., 209 F. 119, 121. Of course, to be constitutionally valid, what is statutorily interdicted 'must be defined with appropriate definiteness.' Pierce v. Unit......
  • Request a trial to view additional results
76 cases
  • Giannini, In re, Cr. 11446
    • United States
    • United States State Supreme Court (California)
    • November 14, 1968
    ...the compromise between candor and shame at which the community may have arrived here and now.' (United States v. Kennerley (S.D.N.Y.1913) 209 F. 119, 121 (Hand, J.).) Indeed, this compromise is inherent in [69 Cal.2d 579] elements of current definitions of obscenity, including 'customary li......
  • Smith v. United States, No. 75-1439
    • United States
    • United States Supreme Court
    • May 23, 1977
    ...84 S.Ct., at 1680 (opinion of Brennan, J.); Roth v. United States, 354 U.S., at 487 n. 20, 77 S.Ct., at 1310; United States v. Kennerley, 209 F. 119, 121 (S.D.N.Y.1913) (L. Hand, J.) (obscenity should be determined in accordance with the "present critical point in the compromise between can......
  • California v. Rue, No. 71-36
    • United States
    • United States Supreme Court
    • December 5, 1972
    ...that the obscenity vel non of a piece of work could be judged by examining isolated aspects of it. See, e.g., United States v. Kennerley, 209 F. 119 (1913); Commonwealth v. Buckley, 200 Mass. 346, 86 N.E. 910 (1909). But in Roth we held that '(t)he Hicklin test, judging obscenity by the eff......
  • Burke v. Kingsley Books, Inc.
    • United States
    • United States State Supreme Court (New York)
    • June 13, 1955
    ...in every land and clime, does not render the statutory definition meaningless. See Learned Hand, J., in United States v. Kennerley, D.C., 209 F. 119, 121. Of course, to be constitutionally valid, what is statutorily interdicted 'must be defined with appropriate definiteness.' Pierce v. Unit......
  • Request a trial to view additional results
1 books & journal articles
  • Anti-Obscenity: A Comparison of the Legal and the Feminist Perspectives
    • United States
    • Political Research Quarterly Nbr. 34-1, March 1981
    • March 1, 1981
    ...examining some part of it wascommon in the 19th and early 20th century. It then came under heavy criticism, as inUnited States v. Kennerly, 209 F. 119, 120 (1913), and has since been abandoned.8 Swearingen v. United States, 161 U.S. 446, 451 (1895).9Burton v. United States, 142 F. 57, 63 (1......

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