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the opening took place afterwards, this statute did not apply, because delivery to the agent or servant is delivery to the person to whom the letter is addressed; and in the former, the judgment was, that the United States was discharged from futher responsibility in the premises after a bona fide delivery, though to the wrong person, himself innocent, when the offense was begun and consummated by a stranger, after the delivery had been perfected. The views of the judges in these cases were fortified by considerations derived from the natural functions, so to speak, of the Federal government, it not being probable that the United States would attempt to regulate the relation of master and servant. I am informed upon good authority that Judge Sprague has made a similar decision. I have considered this question once before. A letter had been left at a shop where the letters of the person to whom the particular letter was addressed were, with his knowledge and consent, usually left. A stranger, the defendant, intermeddled with such a letter after such delivery, and was indicted, under the latter clause above cited, and the case being, by consent, submitted to me in a somewhat informal way, I ruled upon it, and the result was a nol. pros. The government has cited only one case, but it is one of high authority, though, I suppose, not actually binding on this court, which has concurrent jurisdiction of all criminal cases, not capital. The point there came up on a motion to quash. Such a motion is always addressed to the discretion of the court, and I understand the decision to go only to this extent, that it is not necessary to allege in the indictment that the letter was in the custody of the United States at the time it was opened. This is undoubtedly so. The remarks of Mr. Justice Curtis go further, no doubt; still, I do not consider them to go to the length necessary to support this prosecution, because they do not refer to a delivery of the letter to one authorized to receive it. Judge Sprague's opinion was given after the decision of United States v. Pond had been made, and that case was called to his attention, and he must have considered, as I do, that it was not an authority to the point now in controversy.

One of the indictments here attempts to meet the difficulty by alleging that the defendant took the letter and unlawfully opened it, but the defect is not in the indictment, but in the law; which does not meet the case. The word unlawfully is not often of much value in an indictment; it only asserts a conclusion of law, which if it arises out of the facts set forth, is unnecessary, and if it does not, is insufficient. The opening may have been unlawful, but it is not made so by any act of Congress. New trial ordered.

1 U. S. v. Pond, 2 Curt. C. C. 265.

POSTAL LAWS-NON-MAILABLE MATTER-INDECENT LETTERS.

UNITED STATES v. LOFTIS.

[12 Fed. Rep. 671.]

In the United States District Court for the District of Oregon, 1882.

1. A Sealed Letter Deposited in the Mail, addressed to some one, is not a writing or publication within the purview of the first clause of section 3893 of the Revised Statutes, declaring obscene, etc., books, writings, etc., or "other publications of an indecent character," non-mailable.

2. A Sealed Letter is not within the Prohibition of said section 3893, however indecent or obscene in its contents; but if there is any such delineation or language put upon the envelope containing it, it thereby becomes non-mailable, and the person depositing it in the mail thereby commits a crime.

Information for violation of section 3893 of the Revised Statutes. James F. Watson, for the Government.

George H. Williams and George Durham, for defendant.

DEADY, D. J. The defendant is accused by the information in this case of "the crime of depositing for mailing and delivery in the postoffice of the United States a publication of an indecent character, and a letter containing indecent and scurrilous epithets, contrary to section 3893 of the Revised Statutes, committed by knowingly mailing at Rainier, in a sealed envelope, postage paid, and addressed to Mr. Joish Way Thayer, Oregon City, Oregon,' a certain obscene and indecent writing and publication" in words and figures as herein set forth.

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The defendant demurs to the information because it does not state facts sufficient to constitute a crime, and upon the argument thereof made the point that however the act of the defendant may be characterized by the general charge in the information, its true character must be ascertained from the particular facts stated therein; and that it appeared therefrom that the alleged indecent "publication" was only a private, sealed letter, and not a publication at all, or anything within the purview of the statute; and it was also suggested in support of the demurrer that the language contained in the letter, however filthy, was not "obscene, lewd, or lascivious."

The legislation upon this subject, it appears, commenced with section 148 of the post-office act of July 8, 1872,1 which provided "that no obscene book, pamphlet, picture, print, or other publication of a vulgar or indecent character, or any letter upon the envelope of which or postal card upon which scurrilous epithets may have been written or printed, or disloyal devices printed or engraven, shall be carried in the

1 17 Stat. 302.

mailable matter by its external appearance when a letter or sealed package, and by its contents when not, and therefore open to inspection by the post-office officials. But if it was intended that it should extend to the contents of a sealed letter, some provision would have been made for a legal examination when there was reason to believe that its contents were obnoxious to the law, and its enforcement not left to the chance complaint of the person to whom it might be addressed. But, as the case stands, it is apparent that the matter to be excluded from the mails, and which is made a crime to deposit therein, is such that its illegal character is open to inspection and can be ascertained without breaking the seal of private correspond

ence.

Therefore, in the case of a letter, unless it is non-mailable by reason of something upon the outside of it, or the envelope in which it is contained, it is mailable without reference to the character or morality of its contents.

And yet it is quite certain that the public good would be promoted and no private right injured by including such a case as this within the statute, upon the complaint of the party injured, and thereby prevent the mails from being used as a comparatively safe means by one person to annoy and wound the feelings of another by applying to him in a letter indecent or obscene epithets, or accusing him in gross and beastly language of criminal or immoral conduct. The demurrer is sustained.

OBSTRUCTING THE MAILS-LAWFUL DETENTION TO ARREST FOR

FELONY.

UNITED STATES v. KIRBY.

[7 Wall. 482.]

In the Supreme Court of the United States, 1868.

1. The Act of Congress Punishing any person who "shall knowingly and willfully ob. struct or retard the passage of the mail, or of any driver or carrier, or of any horse or carriage carrying the same," applies only to those who know that their acts will have that effect, and perform them with the intention that such shall be their operation. 2. The Statute does not Include a temporary detention of the mail caused by the arrest of the carrier upon an indictment in a State court for murder.

Certificate of division from the United States Circuit Court, District of Kentucky.

Defendants were indicted, under the act of March 3, 1825, for obstructing and retarding the passage of the mail, etc. They pleaded that Farris, the mail carrier, had been indicted for murder in a State court of Kentucky, and that a bench warrant was issued by said court and placed in the hands of Kirby, sheriff of the county, and that Farris was arrested on said warrant, without any intent on the part of the defendants to retard the mail. The judges were divided in opinion as to whether the defendants were liable on the facts stated.

Mr. Justice FIELD delivered the opinion of the court.

There can be but one answer, in our judgment, to the questions certified to us. The statute of Congress, by its terms, applies only to persons, who "knowingly and willfully" obstruct or retard the passage of the mail, or of its carrier; that is, to those who know that the acts performed will have that effect, and perform them with the intention that such shall be their operation. When the acts which create the obstruction are in themselves unlawful, the intention to obstruct will be imputed to their author, although the attainment of other ends may have been his primary object. The statute has no reference to acts lawful in themselves from the execution of which a temporary delay to the mails unavoidably follows.

All persons in the public service are exempt, as a matter of public policy, from arrest upon civil process while thus engaged. Process of that kind can, therefore, furnish no justification for the arrest of a carrier of the mail. This is all that is decided by the case of United States v. Harvey, to which we are referred by the counsel of the government. The rule is different when the process is issued upon a charge or felony. No officer or employe of the United States is placed by his position, or the services he is called to perform, above responsibility to the legal tribunals of the country, and to the ordinary processes for his arrest and detention, when accused of felony, in the forms prescribed by the constitution and laws. The public inconvenience which may occasionally follow from the temporary delay in the transmission of the mail caused by the arrest of its carriers upon such charges is far less than that which would arise from extending to them the immunity for which the counsel of the government contends. Indeed, it may be doubted whether it is competent for Congress to exempt the employes of the United States from arrest on criminal process from the State courts, when the crimes charged against them are not merely mala prohibita, but are mala in se. But whether legislation of that character be constitutional or not, no intention to extend such exemption should be attributed to Congress unless clearly manifested by its language.

All laws should receive a sensible construction.

18 Law Rep. 77.

General terms should

mailable matter by its external appearance when a letter or sealed package, and by its contents when not, and therefore open to inspection by the post-office officials. But if it was intended that it should extend to the contents of a sealed letter, some provision would have been made for a legal examination when there was reason to believe that its contents were obnoxious to the law, and its enforcement not left to the chance complaint of the person to whom it might be addressed. But, as the case stands, it is apparent that the matter to be excluded from the mails, and which is made a crime to deposit therein, is such that its illegal character is open to inspection and can be ascertained without breaking the seal of private correspond

ence.

Therefore, in the case of a letter, unless it is non-mailable by reason of something upon the outside of it, or the envelope in which it is contained, it is mailable without reference to the character or morality of its contents.

And yet it is quite certain that the public good would be promoted and no private right injured by including such a case as this within the statute, upon the complaint of the party injured, and thereby prevent the mails from being used as a comparatively safe means by one person to annoy and wound the feelings of another by applying to him in a letter indecent or obscene epithets, or accusing him in gross and beastly language of criminal or immoral conduct. The demurrer is sustained.

OBSTRUCTING THE MAILS-LAWFUL DETENTION TO ARREST FOR

FELONY.

UNITED STATES v. KIRBY.

[7 Wall. 482.]

In the Supreme Court of the United States, 1868.

1. The Act of Congress Punishing any person who "shall knowingly and willfully obstruct or retard the passage of the mail, or of any driver or carrier, or of any horse or carriage carrying the same," applies only to those who know that their acts will have that effect, and perform them with the intention that such shall be their operation. 2. The Statute does not Include a temporary detention of the mail caused by the arrest of the carrier upon an indictment in a State court for murder.

Certificate of division from the United States Circuit Court, District of Kentucky.

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