Swearingen v. United States/Opinion of the Court
The record discloses that the defendant below was, in the month of September, 1894, the editor and publisher of a newspaper called 'The Burlington Courier,' and was indicted for having mailed several copies of the paper, containing the article set forth in the previous statement, addressed to different persons.

The bill of exceptions shows that, at the trial, the government offered the article in question in evidence, and that the defendant objected, for the reasons that no public offense was stated in the indictment, that there was a misjoinder of offenses, and that the words of said newspaper article did not constitute unmailable matter. These objections were overruled, and an exception was allowed. The article was then read to the jury, and evidence was offered and received tending to show that on September 21, 1894, copies of the newspaper containing the said article were mailed by employees of the defendant, addressed severally to Riggs, Cowgill, and Lane, who were regular subscribers to the paper, and whose names were on the mail list. The defendant, on the ground of its insufficiency, moved to strike out the evidence as to the mailing of any paper to Lane or Cowgill. This motion was overruled, as was likewise a motion to compel the district attorney to elect upon which count of the indictment he would rely. The defendant offered no evidence, and the court charged the jury that the newspaper article in evidence, which the defendant admitted he published, was obscene and unmailable matter, and that the only thing for the jury to pass upon was whether the evidence satisfied them, beyond a reasonable doubt, that the defendant deposited, or caused to be deposited, in the post office at Burlington, Kan., newspapers containing said article. To the rulings of the court overruling the motions, and to the charge, exceptions were taken and allowed.

As we think that the court erred in charging the jury that the newspaper article in question was obscene and unmailable matter, it will not be necessary for us to consider the merits of those assignments which allege error in the admission of evidence.

This porsecution was brought under section 3893 of the Revised Statutes, which declares that 'every obscene, lewd or lascivious book, pamphlet, picture, paper, writing, or other publication of an indecent character * * * 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, and any person who shall knowingly take the same or cause the same to be taken from the mails for the purpose of circulating or disposing of or aiding in the circulation or disposition of the same, shall be deemed guilty of a misdemeanor, and shall, for each and every offense, be fined not less than one hundred dollars nor more than five thousand dollars, or be imprisoned at hard labor not less than one year nor more than ten years, or both, at the discretion of the court.' The indictment contained three counts, in each of which the offense charged was the mailing of a copy of a newspaper containing the article described in the previous statement, and which was alleged to be 'an obscene, lewd, and lascivious article.'

As already stated, the court charged the jury that the newspaper article was obscene and unmailable matter, and that the only question for the jury to pass upon was whether the defendant deposited the same in the post office at Burlington, Kan.

The language of the statute is that 'every obscene, lewd or lascivious book or paper' is unmailable, from which it might be inferred that each of those epithets pointed out a distinct offense. But the indictment alleges that the newspaper article in question was obscene, lewd, and lascivious. If each adjective in the statute described a distinct offense, then these counts would be bad for duplicity, and the defendant's motion in arrest of judgment for that reason ought to have been sustained. We, however, prefer to regard the words 'obscene, lewd or lascivious,' used in the statute, as describing one and the same offense. That was evidently the view of the pleader and of the court below, and we think this is an admissible construction.

Regarding the indictment as charging, in each count, a single distinctive offense, to wit, the mailing of an obscene, lewd, and lascivious paper, we think the court below erred in charging the jury that the evidence, so far as the character of the paper was concerned, sustained the charge, and that the only duty of the jury was to find whether the defendant knowingly deposited or caused to be deposited in the post office newspapers containing the article so described.

Assuming that it was within the province of the judge to determine whether the publication in question was obscene, lewd, and lascivious, within the meaning of the statute, we do not agree with the court below in thinking that the language and tenor of this newspaper article brought it within such meaning. The offense aimed at, in that portion of the statute we are now considering, was the use of the mails to circulate or deliver matter to corrupt the morals of the people. The words 'obscene,' 'lewd,' and 'lascivious,' as used in the statute, signify that form of immorality which has relation to sexual impurity, and have the same meaning as is given them at common law in prosecutions for obscene libel. As the statute is highly penal, it should not be held to embrace language unless it is fairly within its letter and spirit.

Referring to this newspaper article, as found in the record, it is undeniable that its language is exceedingly coarse and vulgar, and, as applied to an individual person, plainly libelous; but we cannot perceive in it anything of a lewd, lascivious, and obscene tendency, calculated to corrupt and debauch the minds and morals of those into whose hands it might fall.

The judgment of the court below is reversed, and the cause remanded, with instructions to set aside the verdict and award a new trial.

Justices HARLAN, GRAY, BROWN, and WHITE dissented. 

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