. pd to be bad, and Q conviction on the first count is contrary to ..' , " " ' the evidence. The, motion in arrest Qf Judgment will be denied, and the moti,on for a ,llmv trial granted.
UNITED STATES ". GRIMM.
(Ci.rcui.t Co'l,lh"t, li). D. Mi880'lllli. E. D.
Maroh 81, 1891.)
The offense of mailing a letter containing information where or bow obscene pietares., /lte·· may .be procured, created IIY Rev. St. U. S. § 3893, is complete wben tbe letter is deposited, and ,an indictment tberefor is not insufficient because it fails to allelte that the letter actually oonveyed'the information to apartioular person or persons.
Thougb an indictment und£r Rev. Bt. U. S. § 3898, obarging the mailing of a letter containing information concerning obscene pictures, would be sufficient if it fo1tb,e of, the statl:\te. if it goes further, and sets out the language of the letters, whiCh do not on their fa(,'8 purport to convey such information, without also setting out tbe other extrinsic facts upon '\Iv bieb tile government relies, the allegations are repugnant, and an objeqtio,n on the grounel of uncertainty will be '
' ' '
Theclatise of section 3893, as amp,ndedSeptember 26, 1888, under which the indictment was framed, is in substance as follows: "
"Ever1written or card, lettf'r. ... II< ... or not,ce of any 'kind. giving information, <'Iireclly or indirectly. where or how. or of whom. or by whatml'ans an "obscene. lewd. or lascivious book ... ... ... or picture, **, 11<, may be obtailledor made.· ... ... are hereby declared non-maillllatl;er"and shalt AOt ·be conveyedtin the mails:t! and any lwrson "who .!lhallk;uoWipgly depos\h to be deposited, for mailing or delivery. anything declared by this, section to be non-mailable matter, ... ... ... shall for each and every offense be fined," etc'. :"The grand jurors of the United states ... ... * upon ,thl'ir oath s present 'that one' W\llian;J Grimm, late of said di vision of said district. heretofore. to'wit. on day of the m\lnth of JUly. in the year of Our Lord eigilteen hunHnd knOWingly dred and niDety, did then and there unlaWfully, 'deposit.aW(l8\1s.ll to be dl'posited. in the the United States at tit. Louis. Missouri. for mailing ami delivery. a written and:printed letter and no.tica, givin,i; i ll formatio l1 ·,directly and indirectly. to one ,Rohert W. McAfee. where. how. and of whom, and by what means,obscene,lewd. and lascivious and prints; of an indecent character. and intended for and adapiM for an indecentanc.l immoral pse; might be obtained. which said Jetter and notiioowas then and thete non-mailable matter, and was then and there 'contained iu;an wrapper, beating and having thereon the lUl\lress And ;supp.rscription, fQllowing. to-w,it.,·M!r. ,Herman Huntress. care of Bates .:aouse, ·· · aqd W)lich notice is of. tbe follow jng
The first count of the indictn1ent wasl.l.S follows:
UNITED STATES 'V. GR:rM:M.
tenor: -Wm. Grimm, PotographandAft. Studio,'N.E. Cor. of Jefferson avenueand Olive street. ST.LouIS, July 22, 1890.,' M'f'. Huntress, RichmondDElAR,8IR: I received your letter this morning. I will let you have them for $2.QO per doz, & $12.50 per 100. I have about 200 Jlegatives ofactresses. Hespectfully, WM. GRIMM, '-contrary to the form of tile statutes of the United States in such case made and provided, and ag'ainst its peace and dignity."
The. second count. related to the same transaction" and was in. all respectslike the first, ,except it omitted the words "to gne Robert W. and did »9t,aver to .whom the information about obscene picture.a was given. The third and fO'llrth counts were like the first and ,second, respectively, but they, toaoother of the same import as outin the first count, which was deposited in the mail and addressed to "Wm. Water&, .;mre,W. S.Campbell & Co., Clarksville, Texas." Geq. D.&ynolrh, U., S. Dist. Atty. L. A. Steber, for defendSJ;1t.
THAYER, J;, (ajter8tati:hg the facts 'aa above.) The defendant bas Iilade four objections to the ilidi'ctment, but they may be reduced to two: In the first place,it is claimed that the second and fourth counts are bad, because they do not allege the giving of the prohibited tioli "to any particular person or persons." This objection I think is not tenable. The offense consists in depoijiting in the mail a letter or notice containing information ora certain sort"to-wit, information where or how obscene pictures, etc.· may be procured. The offense is evidently plete when a Jetter or notice giving the prohibited information is deposited in the mail, duly addressed to a certain person. It is imm,riterial whether the information contained in the letter ever reaches the person addressed. If it was intended to, reach' him, and the letter was'deposited with such intent,and it contains the prohibited'informlltion,/illof the elements of the offense are present. I can conceive of no good reason why the pleader shorild be compelled to allege that the Jetter veyed'the ,information to a particular person or persons, when it is not essential to prove that fact on the trial. It seems to me quite sufficient to allege, as is done in the second and fourth counts, that the defendAnt ·ltnowing]ydeposited ina given post-office for mailing a letter giving such information as the statute prohibits, and that the letter was addressed to a certain person, giving his name and'address. It must be conclusively presumed from the fact that a letter containing the information was knowingly deposited in a given post-office, duly addressed to a certain person, that the sender intended to impart the information which the letter contains to the party addressed. Second. In the second place the defendant objects generally to all the counts, because they are "vague, indefinite, and uncertain." The force of this objection lies in the fact that while the several counts allege that the letters gave information" where, how, and of whom" obscene pictures might be obtained, yet the connts also set out in hEec verba the several Jetters, and they do not on their face appear to convey the objectionable
information attributed to them. When one part of an indictment alleges that a document gives or contains certain information, and thE' document is then set out in full, and nothing therein shows that it the information averred, there is certainly great force in the objectior. that such an indictment is too uncertain to be upheld. Now it. is true that the allegations of this indictment are not absolutely repugnant. While the letters on their face do not purport to convey any InformatioT) concerning obscene pictures, it may possibly be shown by extrinsic evidence that they do convey such information; that they were written =n answer to letters making inquiries where such pictures could be obtained.. But it is not necessary that the allegations of an indictment should be absolutelyrepl1gnant to render it bad. It is sufficient to render it vulnerable on demurrer that the averments Ilre so far inconsistent as to make it uncertaIn, from an inspection of the bill, whether an offense has or has not been committed. It appears to the court that the averments of this indictment are to that extent contradictory and uncertain. It was suggested in argument that an indictment drawn under section 9893. in the language of the statute is valid, and that it was wholly unneceS1'!ary to set out the letters in full,as was done by the pleader. It is unIlecessary to decide, however, whether the same ruleapplies to an inlike the lJresent for giving information through the mail, where or pictures can be obtained, that applies tq an indictment for obscene1,looks, papers, or letters in the mail. It is well settled that in cases of the latter kind the obscene publication complained ofneed not be set out in. full. Words of general description will suffice. U. S· .v. Foote, 13 Blatch£. 418; U. S. v. Clarke,38 Fed., Rep. 500. The difficulty in the present case is that the pleader did not content himself with declaring in the general language of the statute, even if that would have sufficed. He has set out the letters in full, and thereby thrown discredit on the allegation that they give information where obscene pictures can be obtained. If it was deemed essential to set out the letters in full, then, as they do not on their face purport to give information such as the statute prohibits, the pleader should have set out the other extrinsic facts upon which the government relies, to show that they conveyed information denounced by the statute. Such seems to have been the mode of pleading adopted in U. S. v. Whittier,5 Dill. 35, and I think it is correct. The demurrer will be sustained.
UNITED STATES V. SMITH. (Dtstlr!ct Oowrt, E. D. Wisconsin. March 28,1891.)
Ul!ING MAILS TO DEFRAUD-INDIOTMENT.
An indictment charging defendant with a echeme to defraud, intending to enp;age apartments to be furnished and decorated as a Chinese physician's office, and to represent to various persons through newspaper advertisements, circulars, and letters, to, be sent post-office establishment of the United States that he was a Chinese physicllln, well skilled in the science of medicine, etc., and having devised the aforesaid scheme to defraud, to be effected by opening correspondencewith various persons by means of the post-office establishment of the United States, did in and for exe(.lUting said scheJ;lle and in attempting so to do deposit in the pos!romce, to be senli etc., a certain letter, etc., is insuffiCient to charge an offense under Rev. St. U. l:i. 5 5480, amended by 25 St. 873 because it fails to charge an intent to use the mails to defraud otherwise than by implication or recital.
The charge of such an unexecuted Bcheme is nota sufficient allegation that defend· engaged in an unlawful business to bring assumption and use of and request to be addressed by a fictitious name within Rev. St. 5 5480, subsec. 2, and make it an offense. ·
EliAu Colman, U. S. Diet. Atty., and C. S. Carter, Asst. U. S. Dist.
J.Y: Quarles, for defendant.
JENKINS, J. The Revised Statutes (section 5480, as amended by 25 St. 873) provides that"If any person, having devised or intending to devise any scheme or artifice to defraud, to be effected by either opening or intending to open correspondence or communication with any person by means of the post-office establishment of the United States, or by inciting such other person to open comm unicatiol1 with the person so devising or intending, shall. in executing or attempting to execute such scheme. deposit in the post-office for transmission by mail any letter, packet, writing. circular, pamphlet, or advertisement, or shall receive auy such therefrom shall be punished," etc. Subsection 2 of section 5480, as amended, declares thatco Any person who in and for conducting, promoting, or carrying on in any manner by means of the post-office establishment any scheme or device as above mentioned, or any other unlawful business whatsoever, shall use, assume, or. request to be addressed by any fictitious, false, or title, name, Ot" address, or name other than his own proper name, or shall take or receive from the post-Office any letter. postal-card, or packet addressed to any such fictitious name, shall be punished," etc. The indictment contains three counts,-the first two preferred under the first provision of the section, the third under subsection 2. The defendant demurs separately to each count that no offense is stated within the comprehension of the statutes to which the indictment is addressed. The first two counts are alike, except as to the time of the offense, and may be considered together. It is therein charged that the defendant devised .a Bcheme to defraud various persons, and particularly , out of a large sum of money by means of false pretenses and fraudulent representationB, with intent to obtain such money without consideration, . v.45F.no.8-36