United States v. Warner

• Decision Date: 16 January 1894
• Docket Number: 690.
• Citation: 59 F. 355
• Court: U.S. District Court — District of Washington, Northern Division
• Parties: UNITED STATES v. WARNER.

59 F. 355

UNITED STATES v. WARNER.

No. 690.

United States District Court, D. Washington, Northern Division.

January 16, 1894

Wm. H Brinker, U.S. Atty.

A. R Jones and C. W. Turner, for defendant.

HANFORD District Judge.

The question raised by the demurrer to the indictment in this case is whether the sending by mail in a sealed envelope of a personal written communication from one individual to another is a crime, cognizable in this court. The indictment is founded upon section 3893, Rev. St., which, as amended by Act Sept. 26, 1886, (1 Supp. Rev. St. [2d Ed.] 621,) reads as follows:

'Every obscene, lewd or lascivious book, pamphlet picture, paper, letter, writing, print, or other publication of an indecent character, * * * whether sealed as first-class matter or not, are hereby declared to be non mailable matter. * * * And every person who shall knowingly deposit, or cause to be deposited for mailing or delivery, anything declared by this section to be non mailable, * * * shall, for each and every offense, be fined. * * *'

The supreme court of the United States in the case of U.S. v Chase, 135 U.S. 255, 10 S.Ct. 756, gave an authoritative interpretation to this law, as it stood previous to the amendatory act of 1888, as follows:

'In the statute under consideration, the word 'writing' is used as one of a group or class of words,--book, pamphlet, picture, paper, writing, print,--each of which is ordinarily and prima facie understood to be a publication; and the enumeration concludes with the general phrase 'or other publication, which applies to all the articles enumerated, and marks each with the common quality indicated. It must therefore, according to a well-defined rule of construction, be a published writing which is contemplated by the statute, and not a private letter, on the outside of which there is nothing but the name and address of the person to whom it is written.'

It is impossible to follow the rule of construction which the supreme court has applied to this statute, and yet hold that the word 'letter,' interpolated into it by the amendment, is not qualified by the general phrase 'or other publication.' It is also hard to give the amendment any effect, and yet hold that mere private letters of an indecent character are not within the inhibition of the statute. The question is therefore perplexing. I am unable to agree with Judge Ross, who, in passing upon the same question, in ...