Demolli v. United States

VAN DEVANTER, Circuit Judge. Charles Demolli was tried arid convicted under section 3893 of the Revised Statutes [U. S. Comp. St. 1901, p. 2658] on an indictment charging him with having knowingly deposited and caused to be deposited in the post office at Trinidad, Colorado, for mailing and delivery, a newspaper called “II Eavoratore Italiano” and containing certain obscene, lewd, and lascivious articles. The indictment contained two counts, which differed, in that one had reference to an issue of the paper dated March 13, 1904, and containing an article entitled “Lettera Aperta,” and the other had reference to an issue of the paper dated one week later and containing an article entitled “Next Time.” The first question presented for our consideration arises on the court’s refusal at the close of the evidence to direct a verdict of not guilty, and is: Was there any substantial evidence that the objectionable matter was, by the defendant, knowingly deposited, or caused to be deposited, in the post office for mailing or delivery ? It is not questioned that there was ample evidence of the deposit in the post office, for mailing and delivery, of the newspapers containing the objectionable matter, but only that there was any evidence that the defendant was responsible for the objectionable matter being so put in the mail. While there was evidence that the defendant had personally participated in mailing prior issues of the newspaper, it is practically, and we think correctly, conceded by counsel for the government that there was really no evidence that he personally participated in mailing the two issues named, or expressly directed or requested tha.t they be mailed. But there was substantial evidence tending to show these facts: The defendant was one of the founders of the paper, had been its editor, and took an interest in its continued existence. At the times of the acts charged he was national organizer of the labor union which [365] owned the paper, and in whose interest it was conducted. He was in the habit of frequenting its printing office, and that was the place where he did all his writing. He had been instrumental in having the paper admitted to the mails as second-class matter, had personally participated in mailing prior issues of it, and knew that the established and regular mode of distributing it among its readers was by the use of the mails. While having no authority over its publication or the mode of its distribution, he was permitted to write for it as a correspondent. Testifying in his own behalf, he said: “The paper was a union paper, and necessarily I sent some articles to be published — ■ correspondence.” fie wrote the objectionable articles, and caused them to be published in the paper over his signature. In an affidavit made shortly thereafter he stated that the articles were “published by my direction and not with the knowledge or consent of either Mr. Wm. Howells or John Simpson.” Howells and Simpson were the controlling officers of the paper. His purpose in having the articles published was to bring their contents to the attention of the readers of the paper. The first article concluded with the words “Next Time,” the title of the second article, which opened with the sentence, “What I promised to the readers I will maintain,” and concluded with the words, “In the next number the thrust to the other monkeys.” There was otherwise an obvious connection between the two articles, and they were much the same in character. They appeared in regular issues of the paper, and these were in due course put in the process of distribution through the mail. A more extended statement of the evidence is not necessary. We think what has been recited constitutes substantial and persuasive evidence that the defendant knowingly caused the objectionable matter to be put in the mail. By this it is not meant that there was any evidence that he was responsible for the mailing of the newspapers, as such, or for the mailing of anything more than the objectionable articles published by his direction. It is not essential to the commission of the offense prescribed by the statute that the entire contents of the newspaper, or other parcel, deposited in the mail, be objectionable in character, or that the offender’s responsibility for its being put in the mail extend to its entire contents. Nor is it essential to the commission of the offense that the objectionable matter be deposited in the mail by the offender himself, or by another acting under his express direction, because he is equally responsible if it is deposited therein as a natural and probable consequence of an act intentionally done by him with knowledge at the time that such will be its natural and probable effect. To illustrate: If one intentionally and secretly inserts a lascivious writing in an unsealed letter written by another, which he knows is intended to be transmitted through the mail, and which is afterwards sealed and put in the mail for transmission, without the presence of the objectionable writing being discovered, he is as guilty under the statute as if the letter were his, and, with the objectionable writing, were deposited in the mail by another acting under his express direction. So also if, with the knowledge and consent of the writer, one intentionally causes a lascivious picture to be [366] inserted in an unsealed letter written by another, which he knows is intended to be transmitted through the mail, and which is afterwards sealed and put in the mail for transmission with the objectionable picture therein, he is guilty under the statute, although he did not say anything about mailing the letter or picture. In either case he is guilty, because he intentionally does an act, the natural and probable consequence of which, as known at the time, is that the objectionable matter will be deposited in' the mail along with the other contents of the letter. In the line of causation his act is a proximate cause of the objectionable matter being put in the mail. If the evidence before recited was true, as was found by the jury, the defendant was responsible for the mailing of the objectionable matter. He set in operation and made use of an agency which, as he knew at the time, would, according to its established and regular course, carry the objectionable matter through the mail to the persons to whose attention he designed it should be brought; and it does not lie with him to say that whoever was in charge of the paper might have rejected his articles, that the typesetter might have refused to put them in type, or that whoever in regular course deposited them in the post office might have refused to do so. When the articles were -published in the paper by his direction, the mailing of them as part of the paper followed in natural sequence as an incidental or subordinate act produced by their publication, and was in no sense an independent act or self-operating cause which interrupted or changed the natural sequence of events, or produced a result which could not have been reasonabl anticipated. Union Pacific Ry. Co. v. Callaghan, 6 C. C. A. 205, 56 Fed. 988; Missouri Pacific Ry. Co. v. Moseley, 6 C. C. A. 641, 646, 57 Fed. 921; Milwaukee, etc., Ry. Co. v. Kellogg, 94 U. S 469, 475, 24 L. Ed. 256; The G. R. Booth, 171 U. S. 450, 460, 19 Sup. Ct. 9, 43 L. Ed. 234; Insurance Co. v. Boon, 95 U. S. 117, 130, 24 L. Ed. 395. As was said in the last case: “The proximate cause is . the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster.” We think the court properly refused to direct a verdict of not guilty. Complaint is made of the overruling of a motion in arrest of judgment. The indictment did not set forth the names of any of the persons to whom the newspapers were addressed, but stated that they were unknown to the grand jury, and the defendant, conceiving that the evidence produced at the trial showed that the grand jury had been informed of the names of at least two of these persons, moved in arrest of judgment for that reason. The motion was properly overruled. Judgment can be arrested only for matter appearing on the face of the record, and the evidence is not part of the record for this purpose. 1 Bishop, New Crim. Proc. § 1285; Wharton’s Cr. Pl. & Pr. (9th Ed.) §§ 759, 766; Bond v. Dustin, 112 U. S. 604, 608, [367] 5 Sup. Ct. 296, 28 L. Ed. 835; Van Stone v. Stillwell, etc., Co., 142 U. S. 128, 135, 12 Sup. Ct. 181, 35 L. Ed. 961; Adams v. Shirk, 43 C. C. A. 407, 414, 104 Fed. 54, 61. Objection is made to the sentence imposed on the defendant because it does not contain a formal adjudication of his guilt or specify the offense for which he was sentenced. If the judgment as entered were alone to be examined, the objection would be well taken. But the record of the proceedings in the District Court shows, with such appropriate connections, the return of the indictment by the grand jury, the indictment itself, and every other step in the progress of the case, including the verdict and sentence, as to avoid any doubt respecting the offense of which the defendant was found guilty by the jury and on account of which sentence was imposed by the'court. The case is in this respect within the ruling in Pointer v. United States, 151 U. S. 396, 419, 14 Sup. Ct. 410, 38 L. Ed. 208, where it was held that all parts of the record are to be interpreted together, effect being given to all, if possible, and that a deficiency at one place may be supplied by what appears in another. The objection is therefore not well taken. As no error is disclosed by the record, the judgment is affirmed.