US SUPREME COURT DECISIONS

While the possession of obscene, lewd, or lascivious books, pictures, etc., constitutes no offense under the Act of September 26, 1888, c. 1039, 25 Stat. 496, it is proper in an indictment for committing the offense prohibited chanrobles.com-red

Page 156 U. S. 605

by that act to allege the possession as a statement, tending to interpret a letter written and posted in violation of that act.

A letter, however innocent on its face, intended to convey information in respect of the place or person where or of whom the objectionable matters described in the act could be obtained is within the statute.

In an indictment for a violation of that act it is sufficient to allege that the pictures, papers, and prints were obscene, lewd, and lascivious, without incorporating them into the indictment, or giving a full description of them.

When a government detective, suspecting that a person is engaged in a business offensive to good morals, seeks information under an assumed name directly from him, and that person responding thereto, violates a law of the United States by using the mails to convey such information, he cannot, when indicted for that offense, set up that he would not have violated the law if the inquiry had not been made of him by the government official.

Section 3893, Revised Statutes, as amended by section 2 of the Act of Congress of September 26, 1888, c. 1039, 25 Stat. 496, provides that

"Every obscene, lewd, or lascivious book, pamphlet, picture, . . . and every written or printed card, letter, . . . giving information, directly or indirectly, where or how, or of whom, or by what means any of the hereinbefore mentioned matters, articles, or things may be obtained or made, whether sealed as first-class matter or not, are hereby declared to be nonmailable matter, and shall not be conveyed in the mails nor delivered from any post office nor by any letter carrier, and any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery, anything declared by this section to be nonmailable matter, . . . shall, for each and every offense, be fined upon conviction thereof not more than five thousand dollars, or imprisoned at hard labor not more than five years, or both at the discretion of the court."

On June 6, 1891, the defendant was indicted in the District Court of the United States in and for the Eastern division of the Eastern Judicial District of Missouri for a violation of this statute. The indictment was in four counts. The second is as follows:

"And the grand jurors aforesaid, upon their oaths aforesaid, do further present that afterwards, to-wit, on the day and year aforesaid at the division and district aforesaid, said

Page 156 U. S. 606

William Grimm, late of said division of said district, then and there received a letter, addressed and delivered to him, of the following tenor:"

"Richmond, Ind. July 21, 1890"

" Mr. William Grimm, Saint Louis, Mo."

" Dear Sir: A friend of mine has just showed me some fancy photographs, and advised me that they could be obtained from you. I am on the road all the time, and I am sure many of them could be sold in the territory over which I travel. How many different kinds can you furnish? Send me price list, showing your rates by the hundred and dozen. Address me at once at Indianapolis, Indiana, care Bates House, and I will send you a trial order."

" Herman Huntress"

"And the grand jurors aforesaid, upon their oaths aforesaid, do further present that on the day and year first aforesaid, the said William Grimm then and there had in his possession and under his control a large number, to-wit, eight hundred, obscene, lewd, and lascivious pictures, papers, and prints of an indecent character, and intended and adapted for an indecent and immoral use, and that said William Grimm, in response to said letter, on the day and year first aforesaid, did then and there unlawfully, feloniously, and knowingly deposit and cause to be deposited in the post office of the United States at St. Louis, Missouri, for mailing and delivery, a written and printed letter and notice giving information, directly and indirectly, to one Robert W. McAfee, and divers other persons, whose names are to the jurors aforesaid unknown and for that reason cannot be herein stated, how, where, of whom, and by what means obscene, lewd, and lascivious pictures, papers, and prints of an indecent character, and intended and adapted for an indecent and immoral use, might be obtained, which said letter and notice was then and there nonmailable matter, and was then and there contained in an envelope and wrapper bearing and having thereon the address and superscription following, to-wit, 'Mr. Herman

Page 156 U. S. 607

Huntress, care of Bates House, Indianapolis, Ind.,' and which said letter and notice is of the following tenor:"

"Wm. Grimm, Photograph and Art Studio, N.E. Cor. of"

"Jefferson Avenue and Olive Street"

" St. Louis, July 22, 1890"

"Mr. Huntress, Richmond"

" Dear Sir: I received your letter this morning. I will let you have them for $2.00 per doz. & $12.50 per 100. I have about 200 negatives of actresses."

" Respectfully"

" Wm. Grimm"

"And the grand jurors aforesaid, upon their oaths aforesaid, do further present that on the day and year first aforesaid the said William Grimm, when he so deposited and caused to be deposited said last-named letter and notice in said post office, unlawfully, feloniously, and knowingly, meant and intended thereby to give notice, and did thereby give notice and information, to the writer of said first-named letter, and to said Mr. McAfee, and divers other persons, whose names are to the grand jurors aforesaid unknown, where, how, of whom, and by what means obscene, lewd, and lascivious pictures, papers, and prints of an indecent character, and intended and adapted for an indecent and immoral use, might be obtained, contrary to the form of the statutes of the United States in such case made and provided, and against its peace and dignity."

The fourth count charged another and like offense in a similar form. A demurrer to the indictment having been overruled, the case came on for trial, and a verdict was returned finding the defendant guilty under the second and fourth counts, and not guilty under the first and third. A motion for a new trial having been overruled, the defendant was, on May 21, 1892, sentenced to imprisonment for one year and one day. To reverse such judgment this writ of error was taken. chanrobles.com-red

Page 156 U. S. 608