Mr. Joe Kirby for plaintiff in error.
[227 U.S. 427, 429] Solicitor General Bullitt for defendant in error.
Mr. Justice Day delivered the opinion of the court:
The plaintiff in error was indicted under 3893 of the Revised Statutes, (U. S. Comp. Stat. 1901, p. 2658), which declares certain matter unmailable, for depositing a letter alleged to be obscene, in a postoffice of the United States. Upon trial he was convicted, and was sentenced to a term in the penitentiary. The case is brought here to review alleged errors in failing to sustain objections made to the indictment in the court below.
The indictment charged that Bartell did on the 24th of November, 1911, at Sioux Falls, in the county of Minnehaha, state of South Dakota, unlawfully, wilfully, knowingly, and feloniously deposit in the United States postoffice at Sioux Falls aforesaid, for mailing and delivery by the postoffice establishment of the United States, certain nonmailable matter, to wit: 'A letter inclosed in an envelop, which said letter was then and there filthy, obscene, lewd, lascivious, and of an indecent character, and is too filthy, obscene, lewd, offensive, and of such indecent character as to be unfit to be set forth in this indictment and to be spread at length upon the records of this honorable court. Therefore the grand jurors, aforesaid, do not set forth the same in this indictment; and which said envelop containing said letter was then and there directed to and addressed as follows: Miss Zella Delleree, Stevens Point, Wisconsin, he, the said Lester P. [227 U.S. 427, 431] Bartell, then and there well knowing the contents of said letter and the character thereof, and well knowing the same to be filthy, obscene, lewd, and lascivious, and of an indecent character.'
The plaintiff in error appeared and demurred to this indictment for the reasons following:
The court overruled the demurrer. The same objection, in substance, was taken by motion in arrest of judgment after conviction, and the question presented here is the alleged insufficiency of the indictment.
It is elementary that an indictment, in order to be good under the Federal Constitution and laws, shall advise the accused of the nature and cause of the accusation against him, in order that he may meet the accusation and prepare for his trial, and that, after judgment, he may be able to plead the record and judgment in bar of further prosecution for the same offense.
While it is true that ordinarily a document or writing essential to the charge of crime must be sufficiently described to make known its contents or the substance thereof, there is a well-recognized exception in the pleading of printed or written matter which is alleged to be too obscene or indecent to be spread upon the records of the court. It is well settled that such matter may be identified by a reference sufficient to advise the accused of the letter or document intended without setting forth its contents. United States v. Bennett, 16 Blatchf. 338, Fed. Cas. No. 14,571; Rosen v. United States, 161 U.S. 29 , 40 L. ed. 606, 16 Sup. Ct. Rep. 434, 480, 10 Am. Crim. Rep. 251. [227 U.S. 427, 432] The cases were fully reviewed by Mr. Justice Harlan, speaking for the court, in the Rosen Case, and after stating the right of the accused to be advised of the nature and cause of the accusation against him with such reasonable certainty that he can make his defense and protect himself against further prosecution, the doctrine was thus summarized (p. 40):
We find, upon applying this doctrine to the instant case, that it was specifically charged that the letter was mailed by the accused in violation of the statute, upon a day named, at the postoffice, in a town and county named and within the district; that its contents were well known to the accused, and were so filthy, obscene, lewd, and offensive, and of such indecent character, as to be unfit to be spread upon the record of the court, and that the letter was inclosed in an envelop which was addressed to the person and place specified in the indictment. There was no attempt on the part of the accused to require a bill of particulars, giving a more specific description of the letter, or any further identification of it, if that was necessary to his defense. Under the Federal practice he had a right to apply for such bill of particulars, and it was within the judicial discretion of the court to grant such order, if [227 U.S. 427, 433] necessary for the protection of the rights of the accused, and to order that the contents of the letter be more fully brought to the attention of the court, with a view to ascertaining whether a verdict upon such matter as obscene would be set aside by the court. United States v. Bennett and Rosen v. United States, supra. In Durland v. United States, 161 U.S. 306, 315 , 40 S. L. ed. 709, 712, 16 Sup. Ct. Rep. 508, it was held that a general description of a letter, identified by the time and place of mailing, when it was mailed in pursuance of a scheme to defraud, was sufficient, in the absence of a demand for a bill of particulars.
As to the objection that the charge was so indefinite that the accused could not plead the record and conviction in bar of another prosecution, it is sufficient to say that in such cases it is the right of the accused to resort to parol testimony to show the subject-matter of the former conviction, and such practice is not infrequently necessary. United States v. Claflin, 13 Blatchf. 178, Fed. Cas. No. 14,798; Dunbar v. United States, 156 U.S. 185 , 39 L. ed. 390, 15 Sup. Ct. Rep. 325; Tubbs v. United States, 44 C. C. A. 357, 105 Fed. 59. In the Dunbar Case it was stated that other proof beside the record might be required to identify the subject-matter of two indictments, and the rule was laid down as follows (p. 191):
The present indictment specifically charged that the accused had knowingly violated the laws of the United States by depositing on a day named, in the postoffice specifically named, a letter of such indecent character as to render it unfit to be set forth in detail, inclosed in an envelop bearing a definite address. In the absence of a demand for a bill of particulars we think this description sufficiently advised the accused of the nature and cause of [227 U.S. 427, 434] the accusation against him. This fact is made more evident when it is found that this record shows no surprise to the accused in the production of the letter at the trial, and no exception to its introduction in evidence, and there is no indication that the contents of the letter, when it was produced, did not warrant the description of it given in the indictment.