United States v. Lamkin

• Decision Date: 08 April 1896
• Docket Number: 755.
• Citation: 73 F. 459
• Parties: UNITED STATES v. LAMKIN.
• Court: U.S. Court of Appeals — Fourth Circuit

73 F. 459

UNITED STATES v. LAMKIN.

No. 755.

United States Circuit Court, E.D. Virginia.

April 8, 1896

The following are the letters on which the indictment was founded:

Letter No. 1.

Monday 6:30 p.m.

Miss Lena: Why did you fail to meet me as you promised? See me Tuesday at one and a half at corner Twenty-Third and Grace and explain to me.

Your Friend.

Letter No. 2.

Miss Lena: Don't get angry with me for writing to you, but I think you have treated me badly after you promised to meet me, and failed to do so. If you had not wanted to meet me you could of told me so, and all would of been well. I have been a friend to you, and will still be so, but I want you to see me and explain or write to me and tell me the reason you did not keep your promise to meet me. You will please answer this note.

Twenty-third Street Friend.

To A Goodfellow, care of T. B. Williams, corner Twenty-First and Marshall streets.

March 13, 1896.

If you don't get this in time to answer, come. I will be at place any way.

Saturday night.

Letter No. 3.

Miss Lena: I went at 7:45 to Twentieth and Marshall, and waited till 8 and after. Now, if you intend to be a friend, you meet me at 4 o'clock Monday, at Fourteenth and Broad, for this is the last time I shall ask you. I don't want to be fooled again. If you want boys instead of my friendship, that is all right. You come, if you have to stay home from work. You shall be paid for the week's time. Come sure. This is the last time I will ask you.

Your Friend.

Monday, 16th, 4 p.m., Fourteenth and Broad.

Letter No. 4.

Tuesday.

Miss Lena: I said to you in my last note that I would not trouble you again, but as you did not think well enough of me to answer it, I will break my work to write this one, asking you if you wish my friendship to cease. If so, answer. I will not get mad, for I don't think from the way you act you care much for it. You can't say that I have not tried to be a friend to you. You will please do me a favor to destroy notes. You have envelope addressed. Answer to A. Goodfellow.

Corner Twenty-First and Marshall, Care of T. B. Williams.

Hoping you may do well with boy friends. You will find your error soon; mark my words.

Letter No. 5.

Tuesday Eve.

Miss Lena: Why don't you keep your promise, and meet me at Twenty-Third and Franklin to-day, as you promised? You must meet me Wednesday at 4 o'clock. A. Goodfellow.

Care of T. B. Williams, Twenty-First and Marshall.

These letters were set out in full in separate counts of the indictment. The counts upon letters 1, 3, and 5, each concluded as follows: 'Meaning by the said letter to convey a proposition from a married man to an unmarried woman for a clandestine meeting for a grossly immoral purpose, against the peace,' etc. The counts upon letters 2 and 4 each concluded as follows: 'Meaning by the said letter to convey a proposition from a married man to an unmarried woman for a clandestine correspondence for a grossly immoral purpose, against the peace,' etc.

The indictment in this case should be quashed upon the following grounds:

James Lyons and William Flegenheimer, for the motion.

(1) The indictment does not allege that the defendant deposited or caused to be deposited for mailing or delivery anything declared to be nonmailable matter by section 3893, Rev. St. U.S., as amended by the act of congress of February 26, 1888, or by any law of the United States.

(2) The indictment does not charge the defendant with any offense. The letters are set forth in full in the indictment, and show on their face that there is not one word in them which is obscene, lewd, lascivious, or indecent. The policy of the statute under which the indictment is found, and the purpose of the said act of congress, were to purge the mails of obscene, lewd, lascivious, and indecent matter, but the statute does not apply to cases which are not embraced in the language employed in the statute, or implied from a fair interpretation of its context, even though they may involve the same mischief which the statute was designed to suppress. U.S. v. Chase, 135 U.S. 255, 10 Sup.Ct. 756; U.S. v. Sheldon, 2 Wheat. 119; U.S. v. Wiltberger, 5 Wheat, 76; U.S. v. Morris, 14 Pet. 464; U.S. v. Hartwell, 6 Wall. 385; U.S. v. Reese, 92 U.S. 214. It is respectfully submitted that this case is not within the terms of the statute, and that the indictment must be quashed.

F. R. Lassiter, Dist. Atty., for the United States.

F. R. Lassiter, Dist. Atty., for the United States.

This indictment is drawn under the act of February 26, 1888, which is amendatory of section 3893, Rev. St. U.S. Of the many questions that have risen out of the subject-matter of this statute since its origin in the act of June 8, 1872, only one is raised in the present issue, namely, whether the letters on which the indictment was found are obscene, lewd, or lascivious, or of an indecent character. The last act on the subject (under which this indictment is drawn) seems to have set at rest most of the questions formerly raised, but the question now presented, being a mixed question of law and fact, might well arise in every appeal to the statute, and is to be determined by the jury, under the guidance of the court, which will define the meanings of the terms employed, and explain the intent of the enactment. U.S. v. Harmon, 45 F. 418.

History of the Law.

The history of the legislation on this subject is traced in Re Wahll, 42 F. 825. It is interesting to follow the gradual stages of the law, because at each successive amendment the law has become more general and sweeping in its character. 'I think no one can follow the legislation from 1872 up to September 26, 1888, without being convinced that congress intended finally to purge the United States mail, and, as far as possible, prevent it from becoming a vehicle for the transmission of obscene, indecent, and lascivious messages. ' 'It is said that the history of the legislation clearly shows that the congress determined to exclude from the mails writings of an impure and immoral character, and not such as was merely coarse, rough, or vulgar. ' U.S. v. Males, 51 F. 42.

Definitions.

The words of the statute have been successively defined as follows: 'The word 'obscene' ordinarily means something that is offensive to chastity, something that is foul or filthy, and for that reason is offensive to pure-minded persons. ' U.S. v. Clarke, 38 F. 733. 'A standard dictionary says that 'obscene' means 'offensive to chastity and decency; expressing or presenting to the mind or view something which delicacy, purity, and decency forbid to be expressed.' ' U.S. v. Harmon, 45 F. 417. 'Obscenity is such indecency as is calculated to promote the violation of the law and a general corruption of morals, * * * includes what is immodest and indecent, and is calculated to excite impure desires, or to corrupt the mind. ' U.S. v. Males, 51 F. 42.

Tests of Obscenity.

It has been held that the proper test to be applied to the foregoing definitions will be found in such considerations as the following: 'There is another large class to be found in every community-- the young and immature, the ignorant, and those who are sensually inclined-- who are liable to be influenced to their harm by reading indecent and obscene publications. The statute under which this indictment is framed was designed to protect the latter class from harm and it is a wholesome statute. Hence, in judging of the tendency of the publication to deprave or corrupt the mind or to excite lustful or sensual desires (which are the tests of obscenity and lewdness), you should consider the effect that the publication would have on the minds of that class of persons whom the statute aims to protect. ' U.S. v. Clarke, 38 F. 734. 'The test of obscenity is this: Where the tendency of the matter charged as obscene 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,' and 'where it would suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of the most impure and libidinous character. * * * Rather is the test, what is its probable reasonable effect on the sense of decency, purity, and chastity of society extending to the family, made up of men and women, young boys and girls,-- the family, which is the nursery of mankind, the foundation rock upon which the state reposes? ' U.S. v. Harmon, 45 F. 417. 'The test is whether the...