Tyomies Pub. Co. v. U.S. | Cases | Westlaw

The plaintiffs in error were convicted in the District Court of violations of section 211 of the Penal Code of the United States. The indictment contained three counts, but on the trial the first count was withdrawn and the jury was instructed that as to plaintiff in error John Salminen only the third count of the indictment should be considered.

The indictment in count 2 charged that the Tyomies Publishing Company, a corporation, and John Nummivuori, business manager of the corporation, did on the 24th of April, 1912, at the city of Hancock, Mich., knowingly and unlawfully deposit and cause to be deposited in the post office at Hancock about 3,000 copies of a publication known as ‘Lapatossu,‘ printed in the Finnish language, containing a certain obscene, lewd, filthy, and indecent picture, identified in the indictment.

In count 3 the indictment charged that the Tyomies Publishing Company, and John Nummivuori, business manager, and John Salminen, editor, on the 13th of December, 1912, at Hancock, Mich., knowingly and unlawfully deposited and caused to be deposited in the post office about 3,000 copies of said publication ‘Lapatossu,‘ containing a certain obscene, lewd, filthy, and indecent picture, identified in the indictment. Each of the pictures was identified by reference to the date of publication borne by the issue in which, and to the page thereof on which, the picture appears as well as by the dialogue connected therewith.

Pleas of not guilty were entered for each of the defendants; a motion to quash the indictment was overruled; and a motion to direct a verdict in favor of the defendants at the close of the government's testimony was overruled. The defendants were found guilty by the jury and sentence imposed. No exceptions were taken to the charge of the court, aside from the court's failure to charge certain requests submitted by the defendants.

It is urged that section 211 of the Penal Code is unconstitutional because it is an ex post facto law and because it abridges the freedom of the press. Section 211 was not enacted after the commission of the offense charged in the present case, nor has the situation changed in any respect to the disadvantage of the accused.

It is urged that the statute does not prescribe a standard by which the crime can be ascertained.

‘The inquiry under the statute is whether the paper charged to have been obscene, lewd, and lascivious was in fact of that character; and if it was of that character, and was deposited in the mail by one who knew or had notice at the time of its contents, the offense is complete, although the defendant himself did not regard the paper as one that the statute forbade to be carried in the mails. Congress did not intend that the question as to the character of the paper should depend upon the opinion or belief of the person who, with knowledge or notice of its contents, assumed the responsibility of putting it in the mails of the United States. The evils that Congress sought to remedy would continue and increase in volume if the belief of the accused as to what was obscene, lewd, and lascivious was recognized as the test for determining whether the statute has been violated. Every one who uses the mails of the United States for carrying papers or publications must take notice of what, in this enlightened age, is meant by decency, purity, and chastity, in social life, and what must be deemed obscene, lewd, and lascivious.‘

The specific argument that the criminality of the act charged is made to depend, not upon a clear expression of the statute, but upon standards personal to the jurors unknown at the time the act was committed, is answered by what was said in Nash v. United States, 229 U.S. 373, 376, 377, 33 Sup.Ct. 780, 57 L.Ed. 1296.

It is urged that under section 211 the offense is not restricted to depositing in the United States mail, but makes it an offense to deposit nonmailable matter anywhere. It is plain that only the post office establishment of the United States was contemplated by Congress, and, as the post office establishment was found to have been employed by the defendants in this case under consideration, surely no objection can be raised by them to this wording of the statute.

It is contended that the court erred in refusing to charge the jury that the Tyomies Publishing Company and John Nummivuori should be acquitted because the alleged nonmailable picture referred to in the second count of the indictment was mailable. Section 3893 of the Revised Statutes did not contain the words ‘and every filthy,‘ which were inserted at the time of the enactment of the Penal Code in 1909. It was plainly the purpose of Congress, in adding these words, to enlarge the scope of the statute so as to cover a class of publications that were not included in the old section. United States v. Dempsey (D.C.) 188 Fed. 450.

The trial judge submitted the issue, as to whether or not this picture was filthy, to the jury, saying:

‘By the term 'filthy’ is meant what it commonly or ordinarily signifies; that which is nasty, dirty, vulgar, indecent, offensive to the moral sense, morally depraving and debasing.‘

We consider that this question was properly submitted to the jury.

*391 No error appears in the record which was prejudicial to the defendants, and, being of the opinion that they were fairly tried, the convictions will be affirmed.