The United States v. Bennett. THE UNITED STATES vs. DEBOIGNE M. BENNETT. There is no provision of law whereby an indictment found in a Circuit Court can be remitted by it to the District Court, unless the District Attorney deems it necessary. The provisions of § 3,893 of the Revised Statutes, as amended by § 1 of the Act of July 12th, 1876, (19 U. S. Sta'. at Large, 90,) which forbid the depositing in the mail, of any obscene or indecent publication, are not repugnant to any provision of the Constitution of the United States. It is not necessary that an indictment under that statute, in respect to a book, should set forth in haec verba the alleged obscene book, or the alleged obscene passages in it, if the indictment states that such book is so indecent, that it would be offensive to the Court and improper to be placed on its records, and that, therefore the jurors do not set forth the same in the indictment, and if the book is sufficiently identified in the indictment for the defendant to know what book is intended. The defendant can always procure information of the charge which he is to meet, so far as regards being furnished with a copy of the publication, or with a copy of the alleged obscene parts of it, by applying to the Court, before the trial, for particulars. The question whether, on the matter alleged to be obscene, a verdict that it is obscene would be set aside, as clearly against evidence and reason, can be fully raised before the trial, by a motion to be made on the indictment and a bill of particulars; and, under all other circumstances, it is for the jury to say whether the matter is obscene or not. A pamphlet of 24 pages, consisting of a sheet and a half secured together by stitching, and with a cover of four pages, and having a title page, is properly described as a book, in an indictment under said statute. Whether a count in respect to a publication merely, without averring what kind of publication, is bad for uncertainty, quere. It is sufficient if the indictment alleges that the defendant knowingly deposited the obscene book, without alleging that he knew it to be non-mailable matter under the statute. It was proper to exclude, on the trial, a question put to the defendant, as a witness, as to whether, at any time, in the sale or mailing of the book, he did it with a knowledge or belief that it was obscene. The District Attorney having, at the trial, marked the particular portions of the book which he claimed to be within the statute, and having stated that he did not rely on any others, the Court properly refused to permit the counsel for the defendant to read to the jury any portions of the book except the parts so marked, unless they were in immediate connection, to qualify the parts so marked. The marked parts and the contexts of the same were read to the The United States v. Bennett. jury and commented on by the defendant's counsel in his summing up, and each one of the jurors had a copy of the book in his hand during the reading and took the same with him. The Court properly refused to permit the defendant's counsel to read from other books clauses of alleged similar character, by way of illustration. The Court properly charged the jury, that the test of obscenity, within the meaning of said statute, is, whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influences, and into whose hands a publication of the sort may fall. The object of the use of the obscene words is not a subject for consideration. The statute differs from no other criminal statute, so as to require a different rule as to a reasonable doubt, on the evidence. During the absence of the jury, the Court sent to them by the officer in charge, and in the absence of the prisoner, after exhibiting the same to the counsel for the prisoner, a direction in writing that they might deliver a sealed verdict to said officer and then separate. They delivered a sealed verdict to said officer, and then separated. The next day they came into Court, and announced, by their foreman, that they had agreed on a verdict, and that he had handed a sealed verdict to said officer. The jury then rendered a verdict of guilty, as stated in such sealed verdict, which was received by the Court from said officer, in the presence of the defendant, and which was thereupon announced, and recorded, in open Court, as a verdict of guilty. The jury were then polled, at the request of the defendant, and each of the jurors answered, that the verdict announced was his verdict. The offence was, by the statute, declared to be a misdemeanor: Held, that no ground was shown for granting a new trial. (Before BLATCHFORD, BENEDICT and CHOATE, JJ., Southern District of New York, May 31st, 1879.) BLATCHFORD, J. The indictinent against the defendant contains two counts. The first count avers, that the defendant, on the twelfth day of November, in the year of our Lord one thousand eight hundred and seventy-eight, at the Southern District of New York, and within the jurisdiction. of this Court, did unlawfully and knowingly deposit, and cause to be deposited, in the mail of the United States, then and there, for mailing and delivery, a certain obscene, lewd and lascivious book, called 'Cupid's Yokes, or The Binding Forces of Conjugal Life,' which said book is so lewd, obscene and lascivious, that the same would be offensive to the Court here, and improper to be placed upon the records thereof; wherefore, the jurors aforesaid do not set forth the same in The United States v. Bennett. this indictment; which said book was then and there inclosed in a paper wrapper, which said wrapper was then and there addressed and directed as follows: G. Brackett, Box 202, Granville, N. Y." The second count avers, that the defendant, "on the twelfth day of November, in the year of our Lord one thousand eight hundred and seventy-eight, at the Southern District of New York, and within the jurisdiction of this Court, unlawfully and knowingly did deposit, and cause to be deposited, in the mail of the United States, then and there, for mailing and delivery, a certain publication of an indecent character, called 'Cupid's Yokes, or The Binding Forces of Conjugal Life,' which said publication is so indecent that the same would be offensive to the Court here, and improper to be placed on the records thereof; wherefore, the jurors aforesaid do not set forth the same in this indictment; which said publication was then and there inclosed in a wrapper, which said wrapper was then and there addressed and directed as follows, to wit: G. Brackett, Box 202, Granville, N. Y." The defendant was tried at one of the exclusively criminal terms of this Court, held under the provisions of sections 613 and 658 of the Revised Statutes, by the District Judge for the Eastern District of New York. The jury rendered a verdict of guilty, and the defendant has moved for a new trial, on a case and exceptions, and also to set aside the verdict, and for an arrest of judgment upon the same, the motion being made at an exclusively criminal term, held under the same sections, by the Circuit Judge for the Second Judicial Circuit, and the District Judges for the Southern and Eastern Districts of New York. Before the commencement of the trial, the counsel for the defendant moved the Court, that the case be remitted from this Court to the District Court for this District, so that the defendant might be there tried, and thereby acquire a right to the benefit of the Act of March 3d, 1879, (20 U. S. Stat. at Large, 354,) entitled "An Act to give Circuit Courts appellate jurisdiction in certain criminal cases." The Court denied the motion. The Act of 1879 provides, that "the The United States v. Bennett. Circuit Court for each Judicial District shall have jurisdiction of writs of error in all criminal cases tried before the District Court, where the sentence is imprisonment, or fine and imprisonment, or where, if a fine only, the fine shall exceed the sum of three hundred dollars." It then provides for the settlement of a bill of exceptions, and for the allowance of a writ of error, and for the affirmance or reversal, by the Circuit Court, of the judgment of the District Court, when it is a judgment against the defendant, in a criminal In this case, the sentence may be imprisonment or fine and imprisonment, or, if a fine only, the fine is to be not less. than $100, nor more than $5,000. But, this indictment was found in this Court before the Act of 1879 was passed, and there is no provision of law whereby an indictment can be remitted by a Circuit Court to a District Court, unless the District Attorney deems it necessary. Such is the provision of 1,037 of the Revised Statutes. Section 1,038 provides for the remission of an indictment from the District Court to the Circuit Court, when, in the opinion of the District Court, "difficult and important questions of law are involved in the case," but there is no provision under which a Circuit Court can, of its own motion, or on the application of the defendant, remit an indictment to a District Court. The case states as follows: "The prosecution then proved the deposit, by the defendant, in the United States mail, for mailing and delivery, of the work entitled 'Cupid's Yokes, or The Binding Forces of Conjugal Life.' The counsel for the prosecution then announced that he had marked the passages in the work already in evidence, in its entirety, which he would read to the jury, and with the reading of those passages to the jury he rested on the part of the prosecu tion." The counsel for the prisoner thereupon moved for the discharge of the prisoner, on the following grounds, to wit: "1. That the statute under which this indictment has been presented is not warranted by, and is in contravention of, the Constitution of the United States, and is, therefore, without force and void. 2. That the indictment itself is defective, The United States v. Bennett. because it does not set out the whole pamphlet, nor localize in any way in it the matter alleged to be within the statute, nor the passages relied upon as obscene or of an indecent character, and which are now, for the first time, asserted as the grounds of this prosecution. 3. That the first count of the indictment is not sustained by the proof, for it avers the deposit of a book, whereas the proof shows a deposit of a pamphlet. This, under the statute, is a fatal variance. 4. The second count is also liable to a similar objection. It avers the deposit of a certain publication of an indecent character,' without further describing it, and the averment is not sustained by the evidence given. It is, therefore, void for uncertainty. 5. That the indictment does not allege an offence under the statute, in that it does not set forth that the said pamphlet is 'non-mailable' under said statute, and that it does not set out that the prisoner knew that the same was non-mailable, as is required by the statute, so as to constitute an offence thereunder." The Court denied the motion. The statute under which this indictment proceeds is § 3,893 of the Revised Statutes, as amended by § 1 of the Act of July 12th, 1876, (19 U. S. Stat. at Large, 90.) It provides as follows: "Every obscene, lewd or lascivious book, pamphlet, picture, paper, writing, print, or other publication of an indecent character, are hereby declared to * * * * * * be non-mailable 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 non-mailable matter shall be deemed guilty of a misdemeanor, and shall, for each and every offence, be fined not less than one hundred dollars nor more than five thousand dollars, or imprisoned at hard labor not less than one year nor more than ten years, or both, at the discretion of the Court." The question of the constitutionality of this statute, so far as the offences charged in this indictment are concerned, seems to us to have been definitely |