Dunlop v. United States
165 U.S. 486 (1897)

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U.S. Supreme Court

Dunlop v. United States, 165 U.S. 486 (1897)

Dunlop v. United States

No. 472

Argued December 21, 1898

Decided February 15, 1897

165 U.S. 486

Syllabus

There was no error in overruling the motion of the defendant, made prior to the trial, to require the district attorney to file the printed matter alleged in the indictment to be obscene, lewd, lascivious and indecent.

There was no error in the admission of the advertisements of proprietorship of the Dispatch, as it is difficult to see how the identity of the paper,

Page 165 U. S. 487

which the indictment averred that the defendant deposited in the post office for mailing, could have been more conclusively proved than by the production of a newspaper called the Dispatch, and purporting to be the official paper of the City of Chicago.

There was no error in permitting government officers in the Post Office Department to testify as to the course of business in the respective offices with which they were connected, with a view of proving the customs of the post office, the course of business therein, and the duties of the employs connected with it.

Where a question is made whether a certain paper or other document has reached the hand of the person for whom it is intended, proof of a usage to deliver such papers at the house, or of the duty of a certain messenger to deliver such papers creates a presumption that the paper in question was actually so delivered.

There was no error in permitting the government to prove that, during the three years preceding the trial and also during the period covered by the dates of the papers, admitted in evidence, namely, July 6 to October 19, 1895, a newspaper purporting to be the Chicago Dispatch was regularly on each day except Sunday received in great quantities at the Chicago post office for mailing and delivery.

Whether the matter is too obscene to be set forth in the record is a matter primarily to be considered by the district attorney in preparing the indictment, and in any event it is within the discretion of the court to say whether it is fit to be spread upon the records or not, and error will not lie to the action of the court in this particular.

There is no merit in the assignment of error taken to the action of the court in refusing to direct a verdict of not guilty at the close of the testimony.

In his argument to the jury, the district attorney said:

"I do not believe that there are twelve men that could be gathered by the venire of this court within the confines of the Illinois, except where they were bought and perjured in advance, whose verdict I would not be willing to take upon the question of the indecency, lewdness, lasciviousness, licentiousness and wrong of these publications."

To this language counsel for the defendant excepted. The court held that it was improper, and the district attorney immediately withdrew it. Held that the action of the court was commendable in this particular, and that this ruling, and the immediate withdrawal of the remark by the district attorney, condoned his error in making it, if his remark could be deemed a prejudicial error.

There was no error in the remarks of the district attorney as to massage treatment.

There was no error in instructing the jury that:

"It is your duty to come to a conclusion upon all those facts, and the effect of all those facts, the same as you would conscientiously come to a conclusion upon any other set of facts that would come before you in life. . . . There is no technical rule, there is no limitation in courts of justice, that prevents you from

Page 165 U. S. 488

applying to them [the facts and circumstances in evidence] just the same rules of good common sense, subject always, of course, to a conscientious exercise of that common sense that you would apply to any other subject that came under your consideration and that demanded your judgment."

There was no error in the following instructions as to obscene publications:

"Now, what is [are] obscene, lascivious, lewd or indecent publications is largely a question of your own conscience and your own opinion, but it must come -- before it can be said of such literature or publication -- it must come up to this point: that it must be calculated with the ordinary reader to deprave him, deprave his morals, or lead to impure purposes. . . . It is your duty to ascertain in the first place if they are calculated to deprave the morals; if they are calculated to lower that standard which we regard as essential to civilization; if they are calculated to excite those feelings which, in their proper field, are all right, but which, transcending the limits of that proper field, play most of the mischief in the world."

In view of the previous instructions of the court, there was no error in refusing to instruct the jury that the presumption of innocence was stronger than the presumption that the government employs who delivered the newspapers to Mr. Montgomery in the Chicago post office building obtained such papers from the mails; or that the presumption that the person who deposited them in the box in the St. Louis post office building from which box the witness McAfee took the papers obtained them from the mails.

This was a writ of error to review the conviction of the plaintiff in error for unlawfully depositing and causing to be deposited, upon the days set out in the various counts, in the post office at Chicago, for mailing and delivery, a newspaper called the "Chicago Dispatch," containing obscene, lewd, lascivious, and indecent matter. There were thirty-two counts in the indictment. The district attorney, under order of the court, elected to proceed upon the first, sixth, twelfth, sixteenth, twenty-sixth, and thirty-second counts. The other counts were quashed, and no evidence was offered to sustain the first count.

The sixth count was as follows:

"And the grand jurors aforesaid under their oath aforesaid do further present that the said Joseph R. Dunlop, on the sixth day of July, in the year aforesaid at Chicago aforesaid, in the division and district aforesaid, unlawfully did knowingly deposit and cause to be deposited in the

Page 165 U. S. 489

post office of the said United States there, for mailing and delivery, a large number of copies, to-wit, one hundred copies of a certain paper, print, and publication entitled 'The Chicago Dispatch,' one of which said copies was then and there directed to 'Mr. Montgomery,' at Chicago aforesaid; another to 'R. M. Williams, Box 801,' at St. Louis, Missouri, and the rest to divers persons, respectively, to the said grand jurors unknown, and each of which last-mentioned copies was then and there a copy of the five-o'clock edition of the day in this count aforesaid and number 840 of the said paper, print, and publication, and contained (amongst other things) on the eleventh page thereof, and under the headings of 'Personal' and 'Baths,' certain obscene, lewd, lascivious, and indecent matters in print, of too great length and of too indecent character to be here set forth in full, against the peace and dignity of the said United States and contrary to the form of the statute of the same in such case made and provided."

The other counts differed from this only in the dates of the newspapers alleged to have been mailed and the days upon which they were deposited in the post office.

The testimony introduced by the government tended to show that there was published in the City of Chicago during the year 1895 and the three years immediately prior thereto, a daily and weekly newspaper entitled "The Chicago Dispatch;" that the plaintiff in error, Joseph R. Dunlop, was the publisher of said newspaper during those years; that copies of the Chicago Dispatch in large numbers were deposited in the Chicago post office for mailing and delivery during said years daily except Sunday; that the copies of the Chicago Dispatch described in the indictment as directed to "Mr. Montgomery" at Chicago, and the copies of the Chicago Dispatch described in the indictment as directed to "R. M. Williams, Box 801," at St. Louis, Missouri, were deposited for mailing and delivery at the post office in Chicago on the dates of said several copies; that all the copies of said Chicago Dispatch, so directed to said R. M. Williams and Mr. Montgomery, contained therein, under the headings of "Personal" and "Baths," certain advertisements that were obscene,

Page 165 U. S. 490

lewd, lascivious, and indecent, and that the plaintiff in error, by reason of being the publisher of said Chicago Dispatch, was liable for the alleged depositing in said post office of said newspapers, so directed to said R. M. Williams and Mr. Montgomery.

Defendant was found guilty, and, after motions for a new trial and in arrest of judgment had been overruled, was sentenced to imprisonment to hard labor in the penitentiary for two years, and to pay a fine of $2,000 and costs.

Thereupon he sued out this writ, assigning sixty-one errors as grounds for reversal. These errors related to the refusal of the court, prior to the trial, to order the district attorney to file the printed matter alleged to be obscene or copies of the same; to the admission of improper testimony, including all the newspapers introduced; to the refusal of the court at the close of the testimony of the government to direct a verdict of not guilty; to prejudicial remarks made by the district attorney in his argument to the jury; to the giving of improper instructions, and to the refusal to give proper instructions requested on behalf of the plaintiff in error.

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