Wetzel v. United States
| Decision Date | 03 July 1916 |
| Docket Number | 2696. |
| Citation | 233 F. 984 |
| Parties | WETZEL v. UNITED STATES. [1] |
| Court | U.S. Court of Appeals — Ninth Circuit |
The plaintiff in error was indicted under three counts for violation of section 211, United States Criminal Code. The first count charged in substance that on August 13, 1912, at San Francisco, he did willfully, unlawfully, knowingly, and feloniously deposit and cause to be deposited in the post office establishment of the United States a certain letter and notice inclosed in a sealed envelope, on which the postage had been prepaid, addressed to Claude L. Coon, Box 741, Kingman, Ariz., which said written letter and notice consisted of the figures '938' and '100' pasted on the back of a printed circular containing certain printed matter which was a notice of the time and place of certain political speeches to be made in San Francisco and was set forth; that the figures pasted on the back of said circular gave information that divers articles and things designed and intended for producing abortion might be obtained at 938 Fillmore street in the city and county of San Francisco at a cost of $100. The second count differed from the first in charging that the figures on the mailed notice gave the information that an act and operation for procuring and producing abortion would be done and performed at No. 938 Fillmore street at a cost of $100. The third count differed from the others in charging that the notice gave information that an abortion would be produced by him, the said defendant, at No. 938 Fillmore street, for the sum of $100.
There was a motion to quash the indictment on the ground that it charged the defendant three times with the same offense, and there was a demurrer to the indictment on the ground that in neither count were facts stated sufficient to constitute an offense against the laws of the United States, and on the ground that the indictment is ambiguous, in that it cannot be ascertained therefrom how and in what manner the figures referred to gave the information prohibited by section 211 of the Criminal Code, and further that the indictment is uncertain and unintelligible, and the figures so referred to therein are without unlawful meaning. The motions to quash and the demurrers were overruled, as was also the motion of the plaintiff in error to require the United States to elect upon which count the plaintiff in error was to be tried.
It was shown on the trial: That the plaintiff in error had published in the newspapers an advertisement reading: 'Old reliable specialists for women.' 'Accommodations, nurse adoption, etc. 938 Fillmore Street. ' That on August 10 1912, a letter was mailed at Kingman, Ariz., addressed to 'Doctor, 938 Fillmore Street, San Francisco California,' in which the writer referred to the advertisement and asked for information as to what the doctor's fee would be for performing an abortion upon a young woman and inquiring when do 'you want her to come.' That in answer to that letter the plaintiff in error mailed to the writer thereof the printed circular, on the back of which were pasted the figures '938' and '100.'
The jury found the plaintiff in error 'guilty on the first count of the indictment, and guilty on the second and third counts of the indictment. ' There was a motion for a new trial, which was granted as to the first count, but denied as to the second and third counts. Thereafter judgment was rendered on the verdict as to the second and third counts.
Catlin, Catlin & Friedman, of San Francisco, Cal. (Augustine C. Keane, of San Francisco, Cal., of counsel), for plaintiff in error.
John W. Preston, U.S. Atty., and M. A. Thomas, Asst. U.S. Atty., both of San Francisco, Cal.
Before GILBERT, ROSS, and HUNT, Circuit Judges.
GILBERT Circuit Judge (after stating the facts as above).
It is assigned as error that the court overruled the defendant's motion to quash the indictment, which was interposed on the ground that the indictment charged one offense in three counts. That defect, if it existed, was no ground for quashing all three counts. A motion to quash is not favored by the courts. It is ordinarily addressed to the discretion of the court. Durland v. United States, 161 U.S. 306, 16 Sup.Ct. 508, 40 L.Ed. 709; Hillman v United States, ...
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