This case is here upon a writ of error sued out of the district court of the United States for the Southern district of California, wherein the plaintiff in error was indicted, tried, convicted, and sentenced for violation of section 3893, Rev. St., as amended by Act. Cong. Sept. 26, 1888, c. 1039, § 2 (25 Stat. 496). The indictment contained two counts, each of which alleged that in the year 1893, at the city of Los Angeles, county of Los Angeles, the plaintiff in error 'did knowingly, willfully, and unlawfully deposit, and cause to be deposited, in the United States post office, at the said city of Los Angeles, county and district aforesaid, for delivery, a certain obscene, lewd, and lascivious letter addressed to 'Mrs. Susan Budlong, box 661, Los Angeles, Cal."; and that the said letter was then and there unmailable matter, by reason of the indecent character of its contents. The two counts differed merely in that they described two different letters, alleged to have been dated, respectively, November 1 and November 3, 1893, and to have been respectively deposited in the said post office November 2 and November 3, 1893.
Section 3893 Rev. St., as amended by the act of September 26, 1888, is as follows:
'Sec. 3893. Every obscene, lewd or lascivious book, pamphlet, picture, paper, letter, writing, print or other publication of an indecent character, and every article or thing designed or intended for the prevention of conception or procuring of abortion, and every article or thing intended or adapted for any indecent or immoral use, and every written or printed card, circular, pamphlet, book, advertisement or notice of any kind 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 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, aiding in the circulation or disposition of the same, shall, for each and every offense, be fined upon conviction thereof not more than five thousand dollars, or imprisonment at hard labor not more than five years, or both, at the discretion of the court; and all offenses committed under the section of which this is amendatory, prior to the approval of this act, may be prosecuted and punished under the same in the same manner and the same effect as if this act had not been passed: provided, that nothing in this act shall authorize any person to open any letter or sealed matter of the first class not addressed to himself.'
The defendant demurred to the indictment on the ground that the facts stated therein did not constitute an offense against the laws of the United States. The demurrer was overruled, and the defendant then pleaded not guilty.
The evidence adduced at the trial tended to prove that one M. H. Flint, a United States post-office inspector, having seen in the Los Angeles Herald a certain advertis ment bearing the address, 'Spero, box 60, this office,' mailed to that address a letter referring to the subject of the advertisement, signed 'Susan H. Budlong, P. O. box 661, Los Angeles, Cal.,' and received in answer thereto, through the post office at Los Angeles, a letter signed 'Spero,' being the letter described in the first count of the indictment; that Flint then sent another letter, signed as above, and, having received an answer thereto signed 'Spero,' wrote a third time, and afterwards received out of the said post office a letter signed 'A. D. A., 313 N. Broadway,' being the letter described in the second count of the indictment. All the letters so received by Flint were inclosed in plain sealed envelopes, neither of which bore any writing save the address. Evidence was also introduced tending to connect the defendant with the mailing of the letters.
The said letters of Flint, and the testimony concerning the same, were introduced against the objections of the defendant, and to the introduction thereof he duly excepted.
At the conclusion of the evidence for the government, the defendant moved the court to instruct the jury to acquit him on the ground that, if any offense had been committed, it had been done at the request of Flint, a government officer, and on the ground that the evidence was insufficient to connect the defendant with the alleged offense. The motion was denied by the court, to which ruling the defendant excepted. The defendant then put in testimony tending to prove his good character, and to countervail the government's evidence to the effect that the said letters were mailed by him.
At the close of all the testimony, the defendant requested the court to give the jury certain instructions, which request was refused Other instructions were given instead, which do not appear in the record. To the court's refusal to give the instructions proposed by the defendant, and to the giving of other instructions, the defendant excepted.
J. Marion Brooks and M. D. Brainard, for plaintiff in error.
Asst. Atty. Gen. Whitney, for the United States.
Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.