GRIMM v. U S(1895)
This was an indictment against William Grimm for mailing letters in violation of Rev. St. 3893. A demurrer to a former indictment having been sustained on the ground of uncertainty in the allegations (45 Fed. 558), defendant was reindicted, and found guilty. A motion for a new trial and a motion in arrest of judgment were overruled. 50 Fed. 528. Defendant sued out this writ of error. [156 U.S. 604, 605] Section 3893, Rev. St., 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 non-mailable 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 non-mailable matter , ... shall, for each and every offence, 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:
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.
D. P. Dyer, for plaintiff in error. [156 U.S. 604, 608] Sol. Gen. Maxwell, for the United States.
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 obscence, 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 [156 U.S. 604, 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 some one 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 [156 U.S. 604, 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 any one. 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 U. S. v. Whittier, 5 Dill. 35, Fed. Cas. No. 16,688; U. S. v. Matthews, 35 Fed. 891; U. S. v. Adams, 59 Fed. 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. U. S., 10 Fed. 92, and the authorities collected in a note of Mr. Wharton, on page 97; U. S. v. Moore, 19 Fed. 39; U. S. v. Wight, 38 Fed. 106, in which the opinion was delivered by Mr. Justice Brown, then district judge, and concurred in by Mr. Justice Jackson, then circuit judge; U. S. v. Dorsey, 40 Fed. 752; Com. v. Baker, 155 Mass. 287, 29 N. E. 512, in which the court held that one who goes to a house alleged to be kept for illegal gaming, [156 U.S. 604, 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, 36 Pac. 714. 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.