Winters v. United States
| Decision Date | 06 November 1912 |
| Docket Number | 3,723. |
| Parties | WINTERS v. UNITED STATES. [1] |
| Court | U.S. Court of Appeals — Eighth Circuit |
Lee Monroe, of Topeka, Kan. (Phillip C. Wilson, W. S. Roark, and Carr W. Taylor, all of Topeka, Kan., on the brief), for plaintiff in error.
McCabe Moore, Asst. U.S. Atty., of Kansas City, Kan. (H. J. Bone U.S. Atty., of Topeka, Kan., on the brief), for the United States.
Before SANBORN and CARLAND, Circuit Judges, and WM. H. MUNGER district judge.
WM. H MUNGER, District Judge.
The plaintiff in error, A. M. Winters, was indicted by the grand jury for a violation of section 211 of the Criminal Code of the United States (Act March 4, 1909, c. 321, 35 Stat. 1129 (U.S. Comp. St. Supp. 1911, p. 1651)). The indictment contained eight counts. The first count charged in substance that A. M. Winters, on or about the 30th day of July, in the year 1910, within the jurisdiction of the court, did then and there willfully, unlawfully, knowingly, and feloniously deposit for mailing and delivery in the post office of the United States, at Topeka, Kan., a certain obscene, lewd, and lascivious letter, the same being in typewriting and beginning as follows:
K.C. Club House, President City.'
The indictment charged that the said letter was then and there inclosed in an envelope, sealed up, and stamped with a two cent United States postage stamp and addressed 'Mr. (name will be omitted), 1022 Taylor Street, Topeka, Kansas,' and said A. M. Winters then and there knowing said letter to be of the character above set forth, and then and there intending the same to be transmitted and delivered by the post office establishment of the United States to said addressee, said letter being too obscene, lewd, and lascivious to be set forth in full herein or spread upon the records of the court, contrary to the form of the statute made and provided, and against the peace and dignity of the United States. The remaining eight counts, with the exception of the seventh, which will be hereafter discussed, charge said A. M. Winters, in the same formal manner, with depositing certain obscene, lewd, and lascivious letters in the United States post office at Topeka, Kan., for mailing and delivery in the post office of the United States to the addressee, he, the defendant, Winters, then and there knowing the contents of said letters; each count containing the beginning and closing sentence of a letter, and in most instances the date of such letter.
'And the grand jurors aforesaid, on their oath aforesaid, do further find and present that the said A. M. Winters, on or about the 27th day of July, in the year 1910, in the said division of said district, and within the jurisdiction of said court, then and there being, did then and there willfully, knowingly, unlawfully, and feloniously deposit for mailing and delivery in the post office of the United States at Topeka, Kan., in said division and district, a certain filthy letter of an indecent character, and then and there containing and inclosed in said envelope a certain article designed, adapted, and intended for preventing conception, and calculated to be used or applied for an indecent and immoral purpose, said article designed and intended as above set forth then and there being inclosed in an envelope and stamped with a two cent United States postage stamp and a special delivery stamp, and addressed: '(The name will be omitted), the Continental Creamery Co., Topeka, Kansas. Personal"
-- and said A. M. Winters then and there knowing said envelope and said inclosure therewith to be of the character above set forth, and then and there intending the same to be transmitted and delivered by the post office establishment of the United States to said addressee, said envelope and its inclosure then and there being too filthy and indecent to be set forth or more fully described herein, or spread upon the records of the court, contrary to the form of the statute made and provided and against the peace and dignity of the United States. To each of the eight counts defendant filed a demurrer, which was overruled, and an exception taken.
These counts, with the exception of the seventh, it will be observed, charge every element of the offense, to wit, that the defendant deposited in the United States post office for mailing and delivery, a certain obscene, lewd, and lascivious letter, he, Winters, knowing the contents of the letter, and that the same was intended to be transmitted and delivered by the post office establishment of the United States to the addressee. It informed the defendant of the identity of the letter by giving the commencing and closing sentence thereof. We think the respective counts of the indictment, except the seventh, were sufficient in this respect, and that they each charge a violation of the statute, and with sufficient particularity to inform the defendant of the particular offense with which he was charged, and that the demurrer as to these counts was properly overruled.
The seventh count failed in every respect to identify the letter said to have been mailed, excepting that it was described as of a certain filthy and indecent character, that it contained a certain article designed, adapted, and intended for preventing conception, and calculated to be used or applied for an indecent and immoral purpose. What the character of the article was was not indicted. It may have been a drug, or it may have been some mechanical device. It did not even give the date of the letter. This count clearly failed to disclose to the defendant the nature of the offense with sufficient definiteness to advise him of what he was charged, or to avail himself of his conviction or acquittal as a protection against further prosecution for the same offense. The decision in United States v. Pupke (D.C.) 133 F. 243, is directly applicable to this count of the indictment. In that case the charge in the indictment was that the defendant:
'Did then and there unlawfully and feloniously deposit and cause to be deposited (in the St. Louis post office for mailing and delivery) a certain letter and writing giving information to one Miss Effie Williams where, how, and of whom, and by what means, an article or thing designed and intended for the prevention of...
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