United States v. Ling

TOWNSEND, District Judge. Demurrer to an indictment for mailing an indecent letter, under section 3893, Bev. St (1 Supp. Bev. St. p. 621), which reads as follows: [1002] . “Every obscene, lewd or lascivious book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character, * * * whether sealed as first-class matter or not, are hereby declared to he non mailable matter. * * * And any person who shall knowingly deposit, or cause to he deposited for mailing or delivery, anything declared by this section to be non mailable, * * * shall, for each and every offense, be fined.” Counsel for the accused claims that a private letter in a sealed envelope is not within the prohibition of the statute, and cites U. S. v. Warner, 59 Fed. 355, and U. S. v. Jarvis, Id. 357. The decisions in U. S. v. Clark, 43 Fed. 574, and U. S. v. Wilson, 58 Fed. 769, also sustain this view. The contrary is held in Re Wahll, 42 Fed. 822; U. S. v. Martin, 50 Fed. 918; and U. S. v. Andrews, 58 Fed. 861. The statute in question differs from the former statute in the insertion-óf the word “letter” between the words “paper” and “writing.” An examination of the statute, and consideration of its history and of the foregoing opinions and of the decisions of the supreme court of the United States upon the questions involved herein, and especially of U. S. v. Chase, 135 U. S. 255, 10 Sup. Ct. 756, have satisfied' me that congress intended, and that the rules of interpretation prescribed in such cases demand, that this statute he so construed as to embrace private sealed letters. No other reason is suggested for the insertion of the word “letter,” which has a meaning in itself, distinct from the word “writing;” and the proviso, “that nothing in this act shall authorize any person to open any letter or sealed matter of the first class, not addressed to Jiimself,” forcibly suggests both the protection of the privacy of the mails and the prohibition of their use for the transmission of obscene matter. The demurrer is overruled.