United States v. Slenker

• Decision Date: 31 October 1887
• Citation: 32 F. 691
• Parties: UNITED STATES v. SLENKER.
• Court: U.S. Court of Appeals — Fourth Circuit

32 F. 691

UNITED STATES v. SLENKER.

United States District Court, W.D. Virginia.

October 31, 1887

At the July special term, 1887, the defendant, Elmina D. Slinker was indicted under Rev. St. U.S. Sec. 3893, (2d Ed. 1878) in the district court of the United States for the Western district of Virginia. The indictment contained two counts which were in these words (omitting formal parts,) viz.:

First Count. That the defendant, on the fifteenth day of March 1887, at, etc., 'did unlawfully and knowingly deposit and cause to be deposited in the mail of the United States, for mailing and delivery, in the post-office of Snowville Virginia, certain obscene, lewd, and lascivious writings papers, prints, and publications, one of which said writings, papers, and publications is called 'The Girl and the Dog,' and the other of said writings, papers, prints, and publications are without any title whatsoever; and all of which said writings, papers, prints, and publications are so lewd, obscene, and lascivious, the same would be offensive to the court here, and are improper to be placed on the records thereof; wherefore the jurors aforesaid did not set forth the same in this indictment. Which such writings, papers, prints, and publications were then and there inclosed in a paper envelope, which said envelope was indorsed in red ink 'Private papers of Elmina D. Slinker, Snowville, Va.,' which said envelope containing said writings, papers, prints, and publications, as aforesaid, were then and there inclosed in another paper envelope, which said last-named paper envelope was then and there addressed and directed as follows: 'W. H. Barclay, Richmond, Virginia,"' etc.

Second Count. Said defendant, on the fifth day of October, 1886, at, etc., 'did unlawfully and knowingly deposit and cause to be deposited in the mail of the United States, for mailing and delivery, in the post-office of Snowville, Virginia, certain obscene, lewd, and lascivious writings, papers, prints, and publications, which said writings, papers, prints, and publications are without any title or heading whatsoever, and said writings, papers, prints, and publications are so lewd, obscene, and lascivious that the same would be offensive to the court here, and improper to be placed on the records thereof; wherefore the jurors aforesaid do not set forth the same in this indictment. Which said writings, papers, prints, and publications were then and there inclosed in a paper envelope, which said envelope was indorsed in red ink, 'Private and to be returned to Elmina X,' which said envelope containing said writings, papers, prints, and publications, as aforesaid, were then and there inclosed in another paper envelope, which last-named paper envelope was then and there addressed and directed as follows: 'R. M. Williams, Drawer D 6, St. Louis, Mo.,' and was stamped in red ink, 'Please order them from Elmina D. Slinker, Snowville, Pulaski, Co., Va.,"' etc.

The case having been adjourned to the October term, the defendant, on October 31, 1887, was put upon trial upon this indictment.

The court (PAUL, J.) charged the jury as follows:

'Gentlemen of the Jury: The court instructs you that the questions you are to determine are: (1) Are the writings, papers, prints, and publications alleged in the indictment to have been knowingly deposited in the mail, for mailing and delivery, by the defendant, of an obscene, lewd, or lascivious character? (2) Did the defendant deposit, or cause to be deposited, in the mail, for mailing and delivery, such obscene, lewd, and lascivious writings, papers, prints, and publications?

'The test of obscenity, within the meaning of the statute under which this prosecution is had, is whether the tendency of the matter sent through the mail is to deprave and corrupt the morals of those whose minds are open to such influences, and into whose hands such writings, papers, prints, and publications of this kind may fall; and 'lewd' means having a tendency to excite lustful thoughts.

'You are further instructed that, if you believe from the evidence that the said writings, papers, and publications were sent through the mail by the defendant, as charged in the indictment, and were of an obscene, lewd, or lascivious character, the object or purpose for which they were sent is not a matter for your consideration. No matter what the motive or purpose for which they were sent, whether in the real or supposed interest of science, philosophy, or morality, if they are of an obscene character, you should find the defendant guilty. The defendant is presumed to know the character of the matter proved by the government to have been mailed by her to Barclay and McAfee,

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