O'NEAL et al. v. UNITED STATES

O’NEAL et al. v. UNITED STATES. No. 4673. Circuit Court of Appeals, Seventh Circuit. Feb. 26, 1932. The indictment in this case is in four counts. The first three charged appellants with having sent obscene matter through the mails, in violation of section 211 of the Criminal Code, 18 USCA § 334; and the fourth count charged them with conspiracy to send obscene matter through the mails, in violation of section 37 of the Criminal Code, 18 USCA § 88. The jury was waived, and the court upon trial found appellants guilty on each count and imposed concurrent sentences of two years in the penitentiary as to each count upon each appellant. John B. Boddie, of Chicago, Ill., for appellants. George E. Q. Johnson, U. S. Atty., and Owen A. West, Asst. U. S. Atty., both of Chicago, Ill. Before ALSCHULER, EVANS, and SPARKS, Circuit Judges. “Every obscene, lewd, or lascivious, and every filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character * * * and every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of the hereinbefore-mentioned matters, * * * or things may he obtained * * * is hereby declared to he nonmailable matter. * * * Whoever shall knowingly deposit, or cause to be deposited, for mailing or delivery, anything declared by this section to be nonmailable * * * shall be fined not more than $5,000, or imprisoned not more than five years, or both." “If two or more persons conspire either to commit any offense against the United States, * * and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both.” [MAJORITY — SPARKS, Circuit Judge] SPARKS, Circuit Judge (after stating the facts as above). The errors relied upon are: (1) Overruling the demurrer to count 1 of the indictment; (2) overruling appellants’ motion in arrest of judgment on counts 2, 3, and 4; (3) lack of evidence to support the finding as to each count. It is contended by appellants that count 1 is defective because Government’s Exhibit No. 1, upon which that count is based, is not obscene. Without discussion, it is sufficient to say that the exhibit is obscene as defined by the statute and as interpreted by the following decisions: Swearingen v. United States, 161 U. S. 446, 16 S. Ct. 562, 40 L. Ed. 765; Dunlop v. United States, 165 U. S. 486, 17 S. Ct. 375, 41 L. Ed. 799; Lau Fook Kau v. United States (C. C. A.) 34 F.(2d) 86; Lynch v. United States (C. C. A.) 285 F. 162; De Gignac v. United States (C. C. A.) 113 F. 197. The demurrer to the first count was properly overruled. The other exhibits upon which counts 2, 3, and 4 are based are admittedly obscene. Indeed, they are so much so that they are not set out in the record. Appellants have not complied with rule 22, § § 5 and 7, of this court in setting forth clearly the errors relied upon; but, aside from the ruling on the demurrer to the first count, the errors assigned relate to the admission of exhibits not referred to in the indictment, failure to produce and introduce in evidence envelopes in which it is charged the obscene matter was sent, lack of proof of mailing of such articles or that they were sent through the mails, indefiniteness as to what exhibits certain counts of the indictment were based upon, and insufficiency of the evidence to support the finding on any count. A perusal of the entire record convinces us that the character of the evidence introduced does not warrant or merit an extended discussion of the questions raised by appellants’ objections. The fact that the government failed to introduce in evidence the envelopes referred to did not constitute a failure of proof as to any material allegation. There was some direct testimony upon almost every material allegation; and, if there be any material allegation not thus supported, it is nevertheless abundantly supported by circumstantial evidence. Levinson v. United States (C. C. A.) 5 F.(2d) 567; Krotkiewicz v. United States (C. C. A.) 19 F.(2d) 421. All evidence received was properly admitted under one or more of the counts, one of which, it must be borne in mind, was a charge of conspiracy. The business seemed to be carried on in the name of Pierre Balzac at 4615 Vincennes avenue, Chicago, but that appellants were the dominant spirits of the concern cannot be doubted after reading the evidence. We find no error in the record. Judgment affirmed. Government Exhibit No. 1. “Chicago, Ill. “Dear Sir: I only hope that this letter is not addressed to some Kid as Kids often write for this type of merchandise and their parents get hold of it and make things bad for’us, but if a parent gets this please return it to me and I will take his name off the mailing list and you won’t be getting any more. I refuse to sell to a Minor. I have a good line of merchandise that if we were in some barnyard together we could express our views on each item. This is not a Magazine Gyp concern, as I do not advertise in magazines as they are always under investigation. “Here’s my list of Hayloft Favorites: Too high for minors to buy. The most beautiful Pbotos in the world of Girls and Men together, posed in Action, and boy are they a Wow at $5.00 per dozen. Nos. 1, 2, 3, 4, 5, 6, 7, and 8, all different, Post Card Size Photos. “Single Photos post card size of girls alone, $3.00 per dozen, Beautiful. “Reading Books that should have thrilled Old King Solomon in all of his Glory or even old Nero the reprobate. The very good readers all contain from 20 to sixty pages each. Some are French and translated in English. “A Mad Artist’s Wife. Read what she does when angered. Her Burning Secret. It’s very good. Room No. 2, as told by a Bell Hop. A Wife’s Confession. Don’t miss it. Love affair of a French Woman. You know they love different. Mme. Du Barry. A King’s Mistress. Read the inside dope on this one. “These 6 Hot Shots are sold together, not separately, for $4.00. “Other Good Readers at 50 cents each or 3 for $1.00. “Only 10 of these Last Readers on hand at present. “Last but not least, ‘Carts’ Short for Cartoon Books. I have Tillie and Mac, Jiggs, Boob, Moon, Dumb Dora and others. These Books are put up and longer and contain more than, usual. Also larg- and they are not the cheap variety. Price $1.00 *each; $10.00 per dozen. “Order enough to be sent by Express as I positively will not send by U. S. Mail. Please return your letter with order as I will not fill your order without the letter. Help me to keep out of trouble by not showing your letter. If you are not interested any more please destroy. “Express Only. No personal Checks taken. Two free reading books with all orders of $5.00 or more. C. O. D. sent only if you send $1.00 to cover Express Charges if you don’t get them out Only 2 cent stamps taken. Minors Do Not Order Please. No Sample is necessary as letter is explanatory. “Confidentially Yours, “M. Pierre Balzac, **4615 Vincennes Ave., Chicago, Illinois”