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
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.
Page 156 U. S. 608
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The sufficiency of the indictment is the first question
presented. It is insisted that the possession of obscene, lewd, or
lascivious pictures constitutes no offense under the statute. This
is undoubtedly true, and no conviction was sought for the mere
possession of such pictures. The gravamen of the complaint is that
the defendant wrongfully used the mails for transmitting
information to others of the place where such pictures could be
obtained, and the allegation of possession is merely the statement
of a fact tending to interpret the letter which he wrote and placed
in the post office.
It is said that the letter is not, in itself, obscene, lewd, or
lascivious. This also may be conceded. But however innocent on its
face it may appear, if it conveyed, and was intended to convey,
information in respect to the place or person where, or of whom,
such objectionable matters could be obtained, it is within the
statute.
Again, it is objected that it is not sufficient to simply allege
that the pictures, papers, and prints were obscene, lewd, and
lascivious; that the pleader should either have incorporated them
into the indictment or given a full description of them, so that
the court could, from the face of the pleading, see whether they
were in fact obscene. We do not think this objection is well taken.
The charge is not of sending obscene matter through the mails, in
which case some description might be necessary, both for
identification of the offense and to enable the court to determine
whether the matter was obscene, and therefore nonmailable. Even in
such cases, it is held that it is unnecessary to spread the obscene
matter in all its filthiness upon the record; it is enough to so
far describe it that its obnoxious character may be discerned.
There, the gist of the offense is the placing a certain
objectionable article in the mails, and therefore that article
should be identified and disclosed; so, here, the gist of the
Page 156 U. S. 609
offense is the mailing of a letter giving information, and
therefore it is proper that such letter should be stated so as to
identify the offense. But it does not follow that everything
referred to in the letter, or concerning which information is given
therein, should be spread at length on the indictment. On the
contrary, it is sufficient to allege its character and leave
further disclosures to the introduction of evidence. It may well be
that the sender of such a letter has no single picture or other
obscene publication or print in his mind, but, simply knowing where
matter of an obscene character can be obtained, uses the mails to
give such information to others. It is unnecessary that unlawful
intent as to any particular picture be charged or proved. It is
enough that in a certain place there could be obtained pictures of
that character, either already made and for sale or distribution,
or from someone willing to make them, and that the defendant, aware
of this, used the mails to convey to others the like knowledge.
A final matter complained of grows out of these facts: it
appears that the letters to defendant -- the one signed "Herman
Huntress," described in the second count, and one signed "Wm. W.
Waters," described in the fourth court -- were written by Robert W.
McAfee; that there were no such persons as Huntress and Waters;
that McAfee was and had been for years a post office inspector in
the employ of the United States, and at the same time an agent of
the Western Society for the Suppression of Vice; that, for some
reasons not disclosed by the evidence, McAfee suspected that
defendant was engaged in the business of dealing in obscene
pictures, and took this method of securing evidence thereof; that
after receiving the letters written by defendant, he, in the name
of Huntress and Waters, wrote for a supply of the pictures and
received from defendant packages of pictures which were conceded to
be obscene. Upon these facts, it is insisted that the conviction
cannot be sustained, because the letters of defendant were
deposited in the mails at the instance of the government, and
through the solicitation of one of its officers; that they were
directed and mailed to fictitious persons; that
Page 156 U. S. 610
no intent can be imputed to defendant to convey information to
other than the persons named in the letters sent by him, and that,
as they were fictitious persons, there could in law be no intent to
give information to anyone. This objection was properly overruled
by the trial court. There has been much discussion as to the
relations of detectives to crime, and counsel for defendant relies
upon the cases of
United States v. Whittier, 5 Dillon 35;
United States v. Matthews, 35 F. 891;
United States v.
Adams, 59 F. 674;
Saunders v. People, 38 Mich. 218,
in support of the contention that no conviction can be sustained
under the facts in this case.
It is unnecessary to review these cases, and it is enough to say
that we do not think they warrant the contention of counsel. It
does not appear that it was the purpose of the post office
inspector to induce or solicit the commission of a crime, but it
was to ascertain whether the defendant was engaged in an unlawful
business. The mere facts that the letters were written under an
assumed name, and that he was a government official -- a detective,
he may be called -- do not of themselves constitute a defense to
the crime actually committed. The official, suspecting that the
defendant was engaged in a business offensive to good morals,
sought information directly from him, and the defendant, responding
thereto, violated a law of the United States by using the mails to
convey such information, and he cannot plead in defense that he
would not have violated the law if inquiry had not been made of him
by such government official. The authorities in support of this
proposition are many and well considered. Among others, reference
may be made to the cases of
Bates v. United States, 10 F.
92, and the authorities collected in a note of Mr. Wharton on page
97;
United States v. Moore, 19 F. 39;
United States v.
Wight, 38 F. 106, in which the opinion was delivered by MR.
JUSTICE BROWN, then district judge, and concurred in by Mr. Justice
Jackson, then circuit judge;
United States v. Dorsey, 40
F. 752;
Commonwealth v. Baker, 155 Mass. 287, in which the
court held that one who goes to a house alleged to be kept for
illegal gaming,
Page 156 U. S. 611
and engages in such gaming himself, for the express purpose of
appearing as a witness for the government against the proprietor is
not an accomplice, and the case is not subject to the rule that no
conviction should be had on the uncorroborated testimony of an
accomplice;
People v. Noelke, 94 N.Y. 137, in which the
same doctrine was laid down as to the purchaser of a lottery
ticket, who purchased for the purpose of detecting and punishing
the vendor;
State v. Jansen, 22 Kan. 498, in which the
court, citing several authorities, discusses at some length the
question as to the extent to which participation by a detective
affects the liability of a defendant for a crime committed by the
two jointly;
State v. Stickney, 53 Kan. 308. But it is
unnecessary to multiply authorities. The law was actually violated
by the defendant; he placed letters in the post office which
conveyed information as to where obscene matter could be obtained,
and he placed them there with a view of giving such information to
the person who should actually receive those letters, no matter
what his name, and the fact that the person who wrote under these
assumed names and received his letters was a government detective
in no manner detracts from his guilt.
These are all the questions presented by counsel. We see no
error in the rulings of the trial court, and the judgment is
therefore
Affirmed.
