United States v. Lamkin

HUGHES, District Judge. These letters are not,in terms, obscene. Because they are not, they have been published in lull in the Richmond daily newspapers, and in other public journals. They contain no indecent language, words, or expressions. They contain requests that the girl should meet the writer on a public street in the daytime; complaints of her failure to meet him in that manner, as requested before; and warnings that he would cease to make these requests any longer, and that he would withdraw his friendship from her. They were mailed, and, if there is any law of the United States making the mailing of such matter penal, the accused is liable to prosecution in this court for mailing them. But there is no such law on the federal statute books. Although they are free from lewd and indecent language, expressions, and words, yet they may have been written for the purpose of seduction, or to obtain meetings for immoral purposes; and the accused, by mailing them, may have abused the privilege of the mails given to every citizen. This misuse of the mails and abuse of the citizen’s privilege for the purpose of seduction, or for assignations,- is a heinous offense against society; but I do not see that ibis an offense against any statute law of the [463] United States. There probably ought to be such a law, and it is probable that before very long congress will see the j)i*opriety of passing one; but as yet it has not done so, and there is none on the statute books. Ft is the province of the slate to protect the morals of society, and to punish all violations of them. There1 are statu laws which do seek to effect this object, but I do not know of any state law punishing the crime of writing letters for the purpose of seduction and procuring assignation meetings. If thine be, the crime of writing and sending such letters is a state offense, punishable by the state courts. In order for the sending of such letters to be cognizable by the federal courts, two thing's must concur: First, the letters shall be mailed; and, second, the offense of mailing letters intended for seduction or procuring immoral assignations shall be made penal by some express statute of the United States. 1 repeal that I know of no law of the United States making penal the mailing of letters intended for seduction or for procuring such assignations. If congress had intended to make such mailing penal, it could have easily done so by an act couched in plain, unmisrakable words. Congress has not done so, and this indictment has been drawn upon a statute (section 3893, Rev. St., amended in Supp. Rev. Hi., at page 621) prohibiting the mailing of obscene, lewd, lascivious language, pictures, words, phrases, letters, and otherwise indecent publications. The language of this statute is, so far as applicable to this case: “Every obscene, lewd, or lascivious letter of an indecent character.” Buck a letter is declared to he unmailable, and the offense is subjected to heavy penalties. Obviously, two things must: concur to make up the offense: First, the letter must be obscene, lewd, etc.; and it must be of an indecent character. Inasmuch as every letter is written, and is a composition of words, it necessarily follows that for a letter to be obnoxious to this statute its language must be obscene, lewd, or lascivious, and it must be of indecent character. The statute does not declare that' the letter must be written for an indecent or obscene purpose, but that the letter itself, iu its language, shall be of indecent character. The letters set out in the indictment are not themselves of indecent character, and. if used for such purposes as have been named, congress luis not made such purposes criminal. When a law denounces a letter containing obscene language, and does not: denounce a letter decent in terms, but written for an indecent' purpose, an indictment founded only upon tin1 obscene purpose cannot be maintained. No laws are more dangerous or more offensive to the public sense of justice than “judge-made” penal laws. No principle of construction, in respect to penal laws, is more thoroughly settled than that they are to be construed by their very language, and the plain intention with which that language is used. For the courts to interpolate a purpose of such use not expressed by the law, and not necessarily implied from its tenor, is for the courts themselves to make penal laws not enacted by the legislative power. Oases have been cited ai bar showing that: several courts have interpolated into the statute — have “read into the law” — from which I [464] have quoted language which makes it virtually read: “Every obscene, lewd or lascivious letter of an indecent charater mailed [for the purpose of seduction or for procuring an immoral assignation] shall be punishable by fine and imprisonment.” If congress had intended that the crime should consist of writing and mailing indecent and obscene letters, written with such a purpose, it would have so declared. It did not interpolate such a purpose in the offense, and no court has a right to do what congress did not do, and what congress could readily have done if it had intended to denounce the use of the mails for the purpose of seduction or procuring immoral assignations. It is not competent for the courts to create, by interpolation in a penal statute, a crime of purpose or intention not expressed in plain words in the statute itself. In the case at bar the accused is indicted for mailing a letter free from the immoral language inhibited by a statute, written apparently for the purpose of seduction or procuring assignations, under a statute which prohibits the mailing of obscene language, and does not prohibit the mailing of letters written for the purpose of seduction or appointing assignations. He is sought to be tried for an offense not prohibited by law, under a statute denouncing another offense. The motion to quash must be granted.