United States v. Grimm

Thayer, J., (after stating the facts as above.) The defendant has made four objections to the indictment, but they may be reduced to two:

First. In the first place, it is claimed that the second and fourth counts are had, because they do not allege the giving of the prohibited information “to any particular person or persons.” This objection I think is not tenable. The offense consists in depositing in the mail a letter or notice containing information of a certain sort, to-wit, information where or how obscene pictures, etc., may be procured. The offense is evidently com-' píete when a letter or notice giving the prohibited information is deposited in the mail, duly addressed to a certain person. It is immaterial 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 information, all of the elements of the offense are present. I can conceive of no good reason why the pleader should be compelled to allege that the letter conveyed the information to a particular person or persons, when it is not essential to prove that fact on the trial. It seems to mo quite sufficient to allege, as is done in the second and fourth counts, that the defendant knowingly deposited in a 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 counts also set out in hxc verba the several letters, and they do not on their face appear to convey the objectionable *560 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 conveys the information averred, there is certainly great force in the objection 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 information concerning obscene pictures, it may possibly be shown by extrinsic evidence that they do convey such information; that they were written in answer to letters making inquiries where such pictures could be obtained. But it is not necessary that the allegations of an indictment should be absolutely repugnant to render it bad. It is sufficient to render it vulnerable on demurrer that the averments are 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 3893 in the language of the statute is valid, and that it was wholly unnecessary to set out the letters in full, as was done by the pleader. It is unnecessary to decide, however, whether the same rule applies to an indictment like the present for giving information through the mail, where obscene books or pictures can be obtained, that applies to an indictment for depositing obscene books, papers, or letters in the mail: It is well settled that in cases of the latter kind the obscene publication complained of need not be set out in full. Words of general description will suffice. U. S. v. Foote, 13 Blatchf. 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.