upon medicine or surgery, intended for general circulation, or a postal card imputing illicit intercourse to a person other than the one to whom it is addressed, or a quack medical advertisement of articles intended to cause abortion, etc.,3 or a mere private communication.4 The offence against the statute is committed by mailing a newspaper with a single obscene article in it, although the remaining articles may be unobjectionable. The fact that the publications were sent in the real or supposed interest of science, philosophy, or morality is immaterial, nor is it any defence that the matter was sent to a fictitious address, or that the medicine mailed was ineffective.8 IV. OBSCENE MATTER NOT IMPORTABLE.-By section 2491 of the Revised Statutes all articles, prints, etc., of an obscene character are forbidden to be imported. A violation of this provision forfeits the articles in question and the forfeiture of articles not obscene in the same invoice or package with those which are cannot be remitted.10 Pictures to come within this statute must be so indecent as to corrupt public morals; they must be something more than coarse and vulgar.11 Any officer, agent, or employee of the government who violates or in any way aids or abets any violation of this section or that concerning the mails is made subject to fine or imprisonment or both.12 1. United States v. Chesman, 19 Fed. Rep. 497; Com. v. Landis, 8 Phila. (Pa.) 453 In the first case cited (United States v. Chesman) an illustrated pamphlet on impotency, containing extracts from standard medical works, but indecent and obscene, was held to come within the statutory prohibition. 2. United States v. Pratt, 2 Am. L. - T. Rep., N. S. 228. 3. Gould and Tucker's Notes on Rev. Stat. U. S., § 3893. 4. For example, a postal card containing words ordinarily called profane, expressions too vulgar for the court to quote, which indecency was disguised by means of an initial letter; slang words assailing the character of the addressee, and a defamatory political epithet is a violation of the act prohibiting the mailing of postal cards of an indecent, scurrilous, or defamatory character. United States v. Davis, 38 Fed. Rep. 326. See also as to private letters. United States v. Huggett, 40 Fed. Rep. 636. 5. United States v. Harman, 38 Fed. Rep. 827. 6. United States v. Slenker, 32 Fed. Rep. 691. One may have what views on religion he pleases, and publish the same, but not in connection with obscene matters sent through the mails. United States v. Bennett, 16 Blatchf. (U. S.) 336, 360–62, 366–69. 7. Bates United States, 11 Biss. (U.S.) 70. 8. Where pills designed to prevent conception were sent through the mail it was no defence to show that the pills were worthless for that purpose. Bates v. United States, 11 Biss. (U. S.) 70. United States v. Bott, 11 Blatchf. (U. S.) 346. 9. The articles, etc., forbidden are substantially the same as those prohibited from the mails by § 3893. The pleadings must be carefully drawn, and there can be no condemnation if the verdict does not find facts enough to warrant it. United States v. One Case of Stereoscopic Slides, Sprague (U. S.) 467. See also Gould & Tucker's Notes on Rev. Stat. U. S. 565. I 10. Gould & Tucker's Notes on Rev. Stat. U. S., § 2491; S. T. D. 7616. 11. 12 Pittsb. L. J. 220; Gould & Tucker's Notes on Rev. Stat. U. S., §§ 2491, 3893. 12. A fine of not more than $5,000 and an imprisonment of not more than ten years. V. THE INDICTMENT.-The general requisites of an indictment have been treated in a previous article. In the case of an indictment for uttering obscene language or dealing in obscene books it should set forth the language or printed matter in hæc verba as in indictments for forgery or libel; but this may be dispensed with and the obscene character of the language or publication be described in more general terms, if it be so gross in character that spreading it upon the record would be an offence against decency.2 This latter provision, however, is not intended to do away with the accuracy always required for indictments; the principle that every person accused should be informed clearly of the nature of the charge against him is always to be strictly adhered to.3 There 1. INDICTMENTS, 10 Am. & Eng. Encyc. of Law 450, et seq. 2. State v. Brown, 27 Vt. 619. See also People v. Hallenbeck, 52 How. Pr. (N. Y.) 502; Thomas v. State, 103 Ind. 419; United States v. Clarke, 38 Fed. Rep. 500; Com. v. Holmes, 17 Mass. 336. This same doctrine is thus set forth: "In framing an indictment for ‘printing, having in possession, and giving away an obscene and indecent pamphlet,' the supposed obscene matter must be set out, unless the publication is in the hands of the defendant, or out of the power of the prosecution, or the mat. ter is too gross and obscene to be spread upon the records of the court, either of which facts, if existing, should be averred as an excuse for failing to set out the same, and whether such matter is obscene or not is a question of law and not of fact. And where the averment would apply equally well to one of many pamphlets, the indictment is defective, inasmuch as the offence charged should be so stated that the judgment on the trial could be pleaded in bar in another prosecution." McNair v. People, 89 Ill. 441. Thus an indictment charging the use of profane and vulgar language on a certain day "and on divers other days in a public street, and in the presence and hearing of divers persons then and there assembled, and then and there repeating the same, to the evil example and common nuisance, etc.," is sufficient. State v. Brewington, 84 N. Car. 783. An indictment for having in possession an obscene drawing need not describe in what the obscenity consists. Fuller v. People, 92 Ill. 182. An indictment for introducing ob scene pictures into a school need not particularly describe the pictures. State v. Pennington, 5 Lea (Tenn.) 506. 3. In the famous case of Rex v. Bradlaugh it was held that in an indictment for the publication of an obscene book it is not sufficient to describe the book by its title only, without setting out any of the words charged as obscene. The defect is not cured by a verdict of guilty, and is available either as ground for a motion in arrest in judgment, or for reversal upon error. Bladlaugh v. Reg., 3L. R., Q. B. Div. 607; 38 L. T., N. S. 118; 26 W. R. 410, C. A.; reversing Reg. v. Bradlaugh, 2 L. R., Q. B. Div. 569; 46 L. J., M. C. 286. An indictment for publishing obscene language must identify the paper, at least, by some general description. Com. v. Wright, 139 Mass. 382. An indictment for an indecent publication which sets out the composition in hæc verba need not allege the circumstances connected with its publication. Smith v. State, 24 Tex. App. 1. As to an indictment for publishing an obscene newspaper, see People v. Girardin, 1 Mich. 90; State v. Hanson, 23 Tex. 232; Com. v. Holmes, 17 Mass. 336. An indictment under Alabama Code, § 4200, which charges that the defendants by rude and indecent behavior, or by profane or obscene language, wilfully disturbed females, members of the society, at the fair grounds in or near the city of Montgomery, met for the purpose of instruction," etc., is defective for not charging the said females were met "in public assembly." Smith v. State, 63 Ala. 55. An indictment for "making an indecent exposure of his person, by making an uncovered exhibition of his privates,' is a sufficient allegation of the commis must, of course, be no variance between the allegations in the bill of indictment and the proof to sustain them. A scienter must always be alleged, it being a matter of substance, not of form.2 sion of a public indecency. Ardery v. State, 56 Ind. 328. It is not necessary, under N. Y. Laws, 1873, ch. 777—punishing the publication of obscene literature-to state in the indictment the age of the person accused. People v. Justices of Special Sessions, 10 Hun (N. Y.) 224. An indictment for uttering, writing, and publishing a lewd and indecent paper was in the following language, viz: "Did utter, write, and publish a certain obscene, lewd, and indecent paper and writing, which said paper was enclosed in a sealed envelope and deposited in the postoffice of the United States, at said town of Catskill, for mailing and delivery; and said envelope being then and there addressed by the words following, that is to say, 'Mrs. Mary T. Westmore, Catskill, N. Y." It was held that the indictment could not be upheld. There should be some general description of the writing. It is not necessary to copy the paper or minutely describe the print, but it is necessary to give a general description thereof and to aver their general tendency; sufficient information should be suggested to put the defendant on enquiry as to her defence, and the subject of the obscenity should be stated. People v. Hallenbeck, 52 How. Pr. (N. Y.) 502. In all cases of obscenity by indecent exposure the indictment must aver exposure and offence to the community generally; mere private indecency is not indictable at common law. 2 Whart. Cr. L., §§ 1431, 1432. Indictments for Mailing Obscene Matter. An indictment for mailing "a certain obscene, lewd, and lascivious paper and publication of an indecent character, called Lucifer," did not further particularize or identify it, neither the date being given nor the title of the article, nor its general tenor or purport. Held, that the indictment was defective and demurrable. United States v. Harmon, 34 Fed. Rep. 872. An indictment under U. S. Rev. Stat., 3892, for depositing in the mails obscene matter, contained a count describing the paper mailed as "a certain obscene paper, print, and publication, of an indecent character, beginning with the words following, to wit: 'As long as there is life there is . hope,' and then and there contained in a paper wrapper having thereon the address following: 'W. E. Deer, Bluff Mills, Indiana, via Waveland; but which paper is so obscene as to be offensive," etc. The paper, being produced, proved to be a form of circular prepared by the defendant for circulation through the mails. Several days before the trial the defendant craved and obtained oyer of the indecent paper in question. It was held that, under the circumstances, the description of the paper was sufficient. United States v. Clarke, 40 Fed. Rep. 325. See also United States v. Clarke, 38 Fed. Rep. 500; Larison v. State, 49 N. J. L. 256; s. c., 60 Am. Rep. 606. 1. 10 Am. and Eng. Encyc. of Law, INDICTMENT, 556. Thus an indictment on Mass. St. 1862, ch. 168, § 1, alleging that the defendant printed and published obscene pictures of naked girls, is not sustained by proof of nakedness only above the waist. Com. v. Dejardin, 126 Mass. 46; s. c., 30 Am. Rep. 652. But a mere technical variance not affecting substantial rights between the paper proved and that set out in the information, is not fatal. Thomas v. State, 103 Ind. 419. See also Bell v. State, I Swan (Tenn.) 42. Proof of Identity of Obscene Article.If, on the trial of an indictment for publishing an obscene snuff-box, a witness proves that the defendant exhibited to him the box produced on the trial, or a box exactly similar, this is not sufficient, if the witness cannot identify the very box exhibited to him. Rex v. Rosenstein, 2 C. & P. 414. 2. United States v. Slenker, 32 Fed. Rep. 694; United States v. Wightman, 29 Fed. Rep. 636; United States v. Carll, 105 U. S. 611; Com. v. Boynton, 12 Cush (Mass.) 499; INDICTMENT, 10 Am. & Eng. Encyc. of Law. An indictment under U. S. Rev. St. § 3893, for depositing obscene matter in the mail was held defective in not averring knowledge of the obscenity of the matter. It is immaterial that the indictment follows the language of the statute, and an averment that defendant knowingly deposited, etc., is not an equivalent of the omitted averment. United States v. Slenker, 32 Fed. Rep. VI. EVIDENCE. To warrant a conviction under the statute against mailing obscene matter it must be proved, 1st, that the defendant or his agent deposited or caused to be deposited the paper in question in the post office for mailing; 2nd, that the defendant knew of the objectionable matter in the paper; 3rd, that the paper is indecent. Evidence of the contents of sealed letters must be obtained otherwise than by their being opened by persons to whom they are not addressed; a search-warrant, issued as required by the fourth amendment to the federal constitution, is necessary.2 Decoy letters may be used to detect violations of the statute, and the fact that post office inspectors used such test or decoy letters to bring to justice a person suspected of mailing obscene literature does not discredit their testimony.3 That a letter sent was written by the defendant may be shown by proof of his handwriting in the usual way; or by other proof. The gravamen of the offence, however, is the sending; it is immaterial who wrote it; and where there is no direct proof of sending, evidence as to handwriting is immaterial.5 OBSOLETE.--See note 6. 691. This case is directly contradicted by that of United States v. Clark, 37 Fed. Rep. 106, and principle seems to sustain this latter case. See also United States v. Bennett, 16 Blatchf. (U. S.) 338. 1. United States v. Bebout, 28 Fed. Rep. 522; Bates v. United States, II Biss. (U. S.) 70; s. c., 10 Fed. Rep. 92; United States v. Clark, 37 Fed. Rep. 106. Proof that the defendant deposited the matter in the mail, not by his own hand but by that of another. Bates v. United States, 11 Biss. (U. S.) 70. 2. Ex parte Jackson, 96 U. S. 727; S. C., 14 Blatchf. (U. S.) 245. 3. United States v. Slenker, 32 Fed. Rep. 694, cases, PAUL, J.; United States v. Wightman, 29 Fed. Rep. 636, cases, and note. As to decoy letters see also United States v. Whittier, 5 Dill. (U. S.) 35; Bates v. United States, 10 Fed. Rep. 92, note; United States v. Bott, II Blatchf. (U. S.) 346; United States v. Foy, 1 Curt. (U. S.) 364; United States v. Pond, 2 Curt. (U. S.) 265; United States v. Cottingham, 2 Blatchf. (U. S,) 470; United States v. Rapp. 30 Fed. Rep. 818. See also POSTAL LAWS. 4. But it is not proper to call as an expert to prove such handwriting an officer detailed by the postoffice department to collect the facts in the case, and who had hunted up the testimony, and busied himself in the inception and United States prosecution of the case. To corroborate the testimony of a former witness, it is proper that the signature of defendant to other letters should be identified by other witnesses. Thomas v. State, 103 Ind. 419. A witness who shows himself acquainted with defendant's handwriting may refer to other papers in his possession to refresh his memory; this not being a comparison of handwritings. Thomas v. State, supra. Guilty knowledge on the part of defendant must be proved; for this purpose it is proper to admit in evidence another letter written by defendant. Thomas v. State, supra. On a trial upon an indictment for sending an obscene letter through the mails, an expert in handwriting may be asked to compare the letter charged in the indictment with one already in evidence for another purpose, acknowl edged by defendant to have been written by him, and to say if in his opinion they both came from the same hand. 5. Thomas v. State, 103 Ind. 419. 6. It must be a strong case to justify the court in deciding that an unrepealed act is obsolete and invalid. It will not say that such a case may not exist where there has been a non-user for a great number of years; where, from a change of time and manners, an ancient sleeping statute would do great mischief if suddenly brought into ac OBSTRUCTING JUSTICE (See also ARREST, vol. I, p. 719: ASSAULT, vol. 1, p. 778; CONTEMPT OF COURT, vol. 3, p. 777; CRIMINAL CONSPIRACY, vol. 4, p. 582; EMBRACERY, vol. 6, p. 507: ESCAPE, vol. 6, p. 844; INDICTMENT, vol. 10, p. 450; OFFICERS; PERJURY; PRISONS; WITNESSES). 1. Obstructing an Officer, 13. 1. What Officer May Not be Resisted, 13. 2. Warrant or Notice of Authority of Officer Serving Process, 15. 3. Kinds of Resistance, 16. (a) Resistance to Process Against the Person, 16. (b) Resistance to Process 4. Effect of Resistance, 20. II. Obstructing Attendance of Wit ness, 25. I. OBSTRUCTINg an Officer-1. What Officer May Not be Resisted. -The offence of resisting an officer in the performance of his official functions is not confined to officers de jure but extends to officers de facto as well, as the question of the appointment and authority of the officer is properly tested in other ways.1 tion; where a long practice inconsistent with it has prevailed, and, especially, where from other and later statutes it might fairly be inferred that, in the apprehension of the legislature the old one was not in force. Wright v. Crane, 13 S. & R. (Pa.) 452. It is contrary to the spirit of our institutions to revive, without notice, a penal statute grown obsolete by long disuse, especially when the general current of legislation shows the statute to have been regarded by the legislature as no longer in force. Hill v. Smith, 1 Morr. (Iowa) 79. See also Snowden v. Snowden, 1 Bland Ch. (Md.) 556. "A positive statute, unrepealed, can never be repealed by non-user alone. Respublica v. Commrs., 4 Yeates (Pa.) 181, 218; Com. v. Hoover, 1 P. A. Browne App. (Pa.) 28; Wright v. Crane, 13 S. & R. (Pa.) 447. The disuse of a law is at most only presumptive evidence that society has consented to such a repeal. However this presumption may operate on an unwritten law, it cannot, in general, act upon one which remains as a legislative act on the statute book, because no presumption can set aside a certainty. A written law may indeed become obsolete when the object to which it was intended to apply, or the occasion for which it was enacted, no longer exists. 1 P. A. Browne App. 28." Bouv. L. Dict. But see Jurisd. Court Chan. 13; 1 Harr. Pro. Chan. 200; 2 Hall. Mid. Ages 156; 2 Com. Dig. 371; Money v. Leach, 3 Burr. 1755; Regina v. Ballevos de Bewdley, 1 P. Wms. 223, cited in Snowden v. Snowden, 1 Bland Ch. (Md.) 555. In a Will.-The word obsolete, written on the margin of a will by the testator, but not signed by him or by anyone for him in the manner prescribed by statute, will not act as a revocation. Lewis v. Lewis, 2 W. & S. (Pa.) 455 - Private Corporation. From total non-observance of the statutes of a private foundation, a repeal of them has been presumed. Attorney General v. Middleton, 2 Ves. Sen. 330. 1. On an indictment for murder, the defendant was allowed to interpose the defence that he was an officer de facto and held to be entitled to protection to the extent that others were bound to respect his official character while making an arrest. And where he believed he was a deputy constable by right, he should be treated so, and the uncommunicated intention of a constable that he should not act in the above capacity, is inadmissible in evidence to affect the consideration of official status. State v. Dierberger, 90 Mo. 369. So, although a minor is not eligible to the office of constable, yet, where he has been appointed special constable and is attempting to make an arrest, to resist him is as much an offence as though he were a constable de jure. Lloyd v. State, 79 Ala. 39. So, where a marshal, under void appointment, supposed he was acting not |