United States v. Musgrave

• Decision Date: 01 April 1908
• Docket Number: 493.
• Citation: 160 F. 700
• Parties: UNITED STATES v. MUSGRAVE.
• Court: U.S. District Court — Eastern District of Arkansas

160 F. 700

UNITED STATES v. MUSGRAVE.

No. 493.

United States District Court, E.D. Arkansas, Eastern Division.

April 1, 1908

U.S Bratton, for defendant.

TRIEBER District Judge.

The defendant is charged in the indictment with violation of section 3893, Rev. St., as amended by the act of September 26, 1888, c. 1039, Sec. 2, 25 Stat. 496 (U.S. Comp. St. 1901 p. 2658), for sending through the mails an obscene, lewd, and lascivious letter which was addressed to his wife. The demurrer raises the question whether such a letter sent by a man to his wife constitutes a violation of this statute. The contention on behalf of the defendant is that in view of the construction placed upon this statute by the Supreme Court in Swearingen v. United States, 161 U.S. 446, 451, 16 Sup.Ct. 562, 40 L.Ed. 765, where the court held that 'the offense aimed at in that portion of the statute we are now considering was the use of the mails to circulate or deliver matter to corrupt the morals of the people. The words 'obscene,' 'lewd,' and 'lascivious,' as used in the statute, signify that form of immorality which has relation to sexual impurity, and have the same meaning as is given them at common law in prosecutions for obscene libel ' Congress could not have intended to include husband and wife, as at common law they were one; and for the further reason that no action or criminal prosecution would lie for a libel of the wife by the husband. There is high authority for the latter proposition. Regina v. Lord Mayor, 16 Q.B.D. 772; State v. Edens, 95 N.C. 693, 59 Am.Rep. 294. But does the language used in the Swearingen Case apply to the entire act, or was it intended to apply only to the one part of the act then under consideration, which was to ascertain the intent of Congress in the use of the words 'every obscene, lewd, and lascivious book * * * or other publication of an indecent character'? A careful reading of the opinion will show that the only question before the court was the latter, as appears from the quotation above. This also applies to numerous other cases in which the same conclusions were reached (Dunlop v. United States, 165 U.S. 486, 17 Sup.Ct. 375, 41 L.Ed. 799; United States v. Clarke (D.C.) 38 F. 732; United States v. Harmon (D.C.) 45 F. 414; United States v. Martin (D.C.) 50 F. 918; United States v. Moore (D.C.) 129 F. 159; Burton v. United States, 142 F. 57, 73 C.C.A. 243), in none of which was there any other question involved than what constitutes such literature as is prohibited by the statute. For this reason these cases are not authorities on the issue involved herein.

In the case at bar it is necessary to construe the entire act in order to determine the question raised by the demurrer. It is well settled that the power vested in Congress to establish post offices and post roads authorizes all measures necessary to secure the safe and speedy transmission of the mails and a prompt delivery of its contents, as well as the power to prescribe what should be carried and what should be excluded. Ex parte Jackson, 96 U.S. 727, 732, 24 L.Ed. 877; In re Rapier, 143 U.S. 110, 134, 12 Sup.Ct. 374, 36 L.Ed. 93. In the last-cited case the court said:

'When the power to establish post offices and post roads was surrendered to the Congress it was as a complete power, and the grant carried with it the right to exercise all the powers which made that power effective. It is not necessary that Congress should have the power to deal with crime or immorality within the states in order to maintain that it possesses the power to forbid the use of the mails in aid of the perpetration of crime or immorality. The argument that there is a distinction between mala prohibita and mala in se, and that Congress might forbid the use of the mails in promotion of such acts as are universally regarded as mala in se, including all such crimes as murder, arson, burglary, etc., and the offense of circulating obscene books and papers, but cannot do so in respect of other matters which it might regard as criminal or immoral, but which it has no power itself to prohibit, involves a concession which is fatal to the contention of the petitioners, since it would be for Congress to determine what are within and what without the rule; but we think there is no room for such a distinction here, and that it must be left to Congress in the exercise of a sound discretion, to determine in what manner it will exercise the power it undoubtedly possesses.'

To the same effect are Enterprise Savings Association v. Zumstein, 67 F. 1000, 15 C.C.A. 153, and Weeber v. United States (C.C.) 62 F. 740, decided by Mr. Justice Brewer and concurred in by Circuit Judges Caldwell and Sanborn.

These authorities conclusively determine that Congress in enacting legislation of this sort, is not attempting to act under any pretended police power, but under the powers granted by section 8 of article 1 of the Constitution 'to establish post offices and post roads. ' If the use of the mails is a privilege which may be granted or withheld by Congress, Congress has the power to determine what shall be carried and what excluded. In the exercise of that power it has excluded explosives, liquids of various kinds, insect pests, except for scientific purposes, packages weighing over four pounds and many other articles. In determining that question Congress does not act for the protection of the rights of individuals merely; this has been wisely left to the states by the national Constitution. But under the powers to regulate the mails, it has seen proper to declare that they shall not be used for any purposes which are detrimental to the morals of the people or against public policy, and, by enacting that the sending of obscene matter through the mails shall not be permissible, it has determined such acts to be against public policy. The public policy of the government is not limited to such matters as are universally considered as injurious to the public interests, but any acts reasonably calculated to have that effect may be prohibited by statute, and thereupon they are against public policy. United States v. Freight Association, 166 U.S. 290, 340, 17 Sup.Ct. 540, 41 L.Ed. 1007; Logan & Bryan v. Postal Tel. Co. (C.C.) 157 F. 570, 587.

In the Freight Association Case the court, speaking by Mr. Justice Peckham, said on that subject:

'The public policy of the government is to be found in its statutes, or when they have not yet spoken, then in the decisions of the courts and the constant practice of the government officials; but when the lawmaking power speaks upon a particular subject over which it has constitutional power to legislate, public policy in such a case is what the statute enacts.'

The authorities as to what was the intent of Congress in enacting this legislation are quite numerous and practically uniform. In Ex parte Jackson, supra, it was held:

'In excluding various articles from the mails, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people; but to refuse the facilities for the distribution of matter deemed injurious to the public morals. * * * All that Congress meant by this act was that the mail should not be used to transport such corrupting publications and articles, and that any one who attempted to use it for that purpose shall be punished. The same inhibition has been extended to circulars concerning lotteries-- institutions which are supposed to have a demoralizing influence upon the people.'

In United States v. Chase, 135 U.S. 255, 261, 10 Sup.Ct. 756, 758, 34 L.Ed. 117, the court, in stating the intent of Congress in enacting this statute, said:

'We think that its purpose was to purge the mails of obscene and indecent matter as far as was consistent with the rights reserved to the people, and with a due regard to the security of private correspondence from examination.' In Timmons v. United States, 85 F. 204, 30 C.C.A. 74, the court said:

'Having regard to the evil to be suppressed, and looking to the whole of the section, the intention was to render nonmailable every obscene, lewd, or lascivious book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character as being similar to those specifically named, and like those in being obscene, lewd, or lascivious in character. Such we think is the proper construction.'

In De Gignac v. United States, 113 F. 197, 52 C.C.A. 71, it was contended that the indictment drawn under this statute was subject to the rule of pleading applicable to indictments for slander, libel, etc.; that it is strictly analogous to an indictment for criminal libel. But in overruling this contention the court held that:

'The primary object of this statute is to protect the mails from corrupt communications. The incidental purpose of the law is to protect the public morals.'

A petition for certiorari to review this case was denied by the Supreme Court. 186 U.S. 482, 22 Sup.Ct. 941, 46 L.Ed. 1266. In United States v. Bebout (D.C.) 28 F. 522, 524, it was held:

'The statute does not make the publication of obscene and indecent matter an offense. It consists in using the United States mail for its circulation.'

In United States v. Smith (D.C.) 45 F. 476, Judge Jenkins said:

'The statute does not make the publication of obscene and indecent matter the power of exclusion, declines to permit the mail to become a vehicle for transmission or circulation of mental filth.'

That the letter charged in the indictment to have been transmitted by the defendant through the mail is within the prohibition of the statute is not denied. As originally enacted, the act did not include letters. Act June 8, 1872, c. 335, Sec. 148 17 Stat. 302,...