Opinion
George J. Denis, U.S. Atty.
Calvert Wilson, for defendant.
WELLBORN, District Judge.
This is a demurrer to the indictment. The grounds of demurrer are: First, that the publication set forth in the indictment is not obscene, nor otherwise in violation of section 3893 of the Revised Statutes of the United States, under which said indictment was found; second, that the indictment alleges that the newspaper containing the publication was inclosed in a wrapper; third, that the indictment does not allege prepayment of postage; fourth, that the indictment is duplicitous, in charging that the defendant 'did deposit, and cause to be deposited,' etc. These grounds I will take up in their order.
1. The printed matter set forth in the indictment falls, I think, under the denunciation of said section, as construed and applied in adjudicated cases. Among those cases are the following: U.S. v. Bennett, 16 Baltchf, 338, Fed. Cas. No. 14,571; U.S. v. Britton, 17 F. 731; U.S. v. Wightman, 29 F. 636; U.S. v. Chesman, 19 F. 497; U.S. v. Harmon, 45 F. 414; U.S. v. Smith, Id. 476; U.S. v. Martin, 50 F. 918.
2. As to the effect of inclosing the newspaper in a wrapper, the law, I think, is correctly expounded by Judge Ross, in the case of
Page 546.
U.S. v. Andrews, 58 F. 861. See, also, U.S. v. Martin, 50 F. 918; U.S. v. Nathan, 61 F. 936; U.S. v. Ling, Id. 1001. Following these cases, I hold that the inclosure of the newspaper in a wrapper does not, other things being sufficiently alleged, prevent the case from falling under the denunciation of said section.
3. Prepayment of postage is not a constituent of the offense charged in the indictment. U.S. v. Lynch, 49 F. 851.
4. To allege that the defendant 'did deposit, and cause to be deposited,' etc., is not such duplicity in pleading as vitiates the indictment. U.S. v. Hull, 14 F. 324; 1 Bish.Cr.Proc. Secs. 434, 435; U.S. v. Stone, 49 F. 848; U.S. v. Fero, 18 F. 901.
The objections urged to the indictment are, in my opinion, untenable; and the demurrer is overruled.