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Vol. II.)

BIER v. DOZIER.

[No. 5.

criminis in the supposed unlawful act? And does the maxim Ex turpi causa non oritur actio apply to his case? I think not. He was not at all engaged in any act of running the blockade, in which the defendants may have been engaged. On the contrary, it is expressly certified as a fact proved in the cause, “ that the plaintiff had not been engaged in the blockade business ;” and of course was not engaged in this blockade business, if that was its nature. He was to derive no benefit from it. He knew nothing of it, until the defendants presented themselves at his house, near night, and requested him to permit them to deposit the tobacco, for the night, in his barn ; which he refused to do, until he was assured that they were armed with the authority of the Confederate government to do the act in which they were engaged ; and not then, until they promised to indemnify him against all loss. He knew that whether he was in fact concerned in blockade running or not, he would be suspected of being guilty by the enemy, if the tobacco was found by them on his premises ; and therefore he properly stipulated with the defendants for his indemnity by them. He afterwards removed and concealed the tobacco, both for his own benefit and that of the defendants, and especially of the defendants, who were bound for his indemnity. He hoped thereby to have saved the property of both. He did save that of the defendants, but lost his own.

. He did not contract to conceal the tobacco, but merely to afford it shelter and house room, which were necessary, whether the tobacco was to be used in a lawful or an unlawful purpose. It was no part of the process of “ running the blockade ;” of carrying the tobacco into Maryland. The defendants arrived near night at the plaintiff's house, near the river. The river was then blocked up with ice; and the defendants wanted accommodation and shelter for themselves and their tobacco ; and the plaintiff reluctantly, on account of the danger of doing so, afforded them the hospitality which they needed, on their promise to indemnify him against loss. Did he thereby make himself a particeps criminis ? - commit an act of turpitude, from which no action can arise, even against the defendants, at whose instance and for whose benefit the act was done ? If there be any, the least, guilt on his part, is not their guilt infinitely greater, and would they not, even on that ground, be liable to the plaintiff ? The plaintiff did not expect any favors from the forces of the United States, if they found the tobacco in his barn ; but he did expect, and had a right to expect, that the defendants would stand up to their bargain. What is it to the government — how can it be against the policy of the law — if the defendants be compelled to comply with their contract ? Suppose the plaintiff had given a meal of victuals, or a night's lodging, to those supposed blockade runners, would that have made him a particeps criminis ? He not only did that, but he afforded them shelter and a place of deposit for their tobacco which they had along with them. Did that any more make him a particeps criminis ? Must he, of necessity, permit their tobacco to remain exposed to the weather, and be thus destroyed ? We must bear in mind that there is no evidence tending to show that there was any purpose of concealment of the tobacco in view of the parties, or any other purpose than that of affording temporary shelter to the defendants and their tobacco, during the night, or until they could carry it away. . We know very well, that to make a contract unlawful, as being against

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Vol. II.)

BIER v. DOZIER.

(No. 5.

law or public policy, “ it must be manifestly and directly so; and it is not enough that the contract is connected with some violation of the law, however remotely or indirectly." Let it be remembered that this is not a controversy between a citizen of the Confederate States and a citizen of the United States; nor between a citizen of the Confederate States and the government, either of the Confederate States or United States ; but between citizens of the Confederate States inter se; and that the effort of the defendants is to get rid of the obligation of their express promise, of which they have received the full benefit, upon the ground that it was contrary to the policy of a law of which they have been the chief, if not the only, violators.

I am therefore of opinion that the verdict is not against law, any more than it is against evidence, and that the circuit court did not err in overruling the motion of the defendants to set it aside.

The court gave to the jury an instruction, on the motion of the plaintiff, which is embodied in the defendant's second bill of exceptions. But that exception was taken only to the opinion of the court overruling the motion of the defendants for a new trial, and not to the opinion of the court in giving that instruction. There was no exception to that instruction ; and therefore it cannot be objected to, for the first time, in the appellate court. But, in fact, it is not liable to any well founded objection. It presents a case which made the defendants liable, according to what'has been already said. That it proceeds further to state that the defendants, after becoming so liable, assumed to pay such damage as the plaintiff had sustained by the destruction of his property, can do no harm, if it does no good. The next and last question, is :

Thirdly. Did the circuit court err in overruling the demurrer to the declaration ?

This question would seem properly to be the first which should have been considered in regular order, but I thought it more convenient to consider it lastly. The declaration contains two counts, which seem not materially, to vary from each other. The demurrer is general to the whole declaration, and not to each count; so that, if either be sufficient, the demurrer was properly overruled. I think both are sufficient. The declaration says nothing about the authority of the defendants, as agents of the Confederate States, to exchange tobacco for bacon; and therefore it presents the question, whether the contract, without reference to that fact, was legal; and upon that question I have already fully expressed my opinion, that there was nothing in the contract, as stated in the declaration, which made it illegal or void. As to the addendum to the declaration, concerning which the learned counsel for the defendants seemed to be at a loss whether it was intended by the pleader to be a separate count, or what else — I do not consider it as a separate count, nor that it was intended to be such. It is not accurately drawn though it may have been intended as a common breach to the two counts; and may well serve as a breach to the first count, which otherwise seems to be without a breach. The second count has a breach, and is a perfect count. At all events, the addendum does no harm.

Upon the whole, I think there is no error in the judgment, and that it ought to be affirmed.

Vol. II.)

UNITED STATES v. PRATT.

[No. 5.

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The other judges concurred in the opinion of MONCURE, P.

BOULDIN, J., did not sit in the case, — he not having been on the bench when it was argued ; but he said he concurred in the first proposition considered by Judge Moncure.

Judgment affirmed.

- EASTERN

DISTRICT COURT OF THE UNITED STATES.

DISTRICT OF MICHIGAN.

[APRIL, 1875.]

CONSTRUCTION OF $ 3893 REVISED STATUTES CONCERNING THE TRANS

MISSION OF SCURRILOUS COMMUNICATIONS IN THE MAIL. - " EPITHET DEFINED. POSTAL CARDS.

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UNITED STATES v. PRATT.

A mailed a postal card directed to B, having written upon it certain words which im

puted illicit intercourse to C and another, but in which no epithet, in the form of a substantive or adjective, was used. Held, that the offence was within the terms of section 3893 of the Revised Statutes.

This was a motion to quash an indictment. The prisoner was charged with the offence of depositing and causing to be deposited in the postoffice for mailing, a postal card, upon which was written indecent epithets, contrary to the provisions of section 3893 of the Revised Statutes, which reads as follows:

“ No obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character, or any article or thing designed or intended for the prevention of conception or procuring of abortion, nor any article or thing intended or adapted for any indecent or immoral use or nature, nor any written or printed card, circular, book, pamphlet, advertisement, or notice of any kind, giving information, directly or indirectly, where or how or of whom or by what means either of the things before mentioned may be obtained or made, nor any letter upon the envelope of which, or postal card upon which, indecent or scurrilous epithets may be written or printed, shall be carried in the mail ; and any person who shall knowingly deposit or cause to be deposited, for mailing or delivery, any of the herein before mentioned articles or things, or any notice or paper containing any advertisement relating to the aforesaid articles or things, and any person who, in pursuance of any plan or scheme for disposing of any of the herein before mentioned articles or things, shall take or cause to be taken from the mail any

such letter or package, shall be deemed guilty of a misdemeanor," &c.

The prisoner was charged with having mailed, at Jackson, a postal card, addressed to Geo. A. Mills, of Reilly, Muskegon County, Mich., upon which was written the following:

Jackson, Dec. 8th, 1874. “To MR. Mills: How does you and Mrs. (giving name) get along, that you show your private letters to and persuade her to stay away from

Vol. II.)

UNITED STATES v. Pratt.

(No. 5.

her little ones. Your taste must be low after she has been catched locked up in a room with a man that had funny curly hair and such funny eyes. My advice to you is not to read her any more of your private letters ; she will expose you.

Pasted upon the back of this card, and in immediate proximity to the writing, was a picture representing the head of a colored man.

It was argued, by the counsel for the prisoner :

1. That the section relied upon by the government provides no punishment for the mailing of scurrilous postal cards.

2. That the matter written upon the postal card in question contains no “ indecent epithets,” and therefore is not within the statute.

Mr. Henry M. Cheever, for the prisoner.

Messrs. J. W. Finney f H. H. Swan, Assistant District Attorneys, for the United States.

BROWN J. The section under which the indictment in this case is framed contains two distinct clauses, one prohibitory and the other penal. The prohibitory clause provides that the following articles shall not be carried in the mails : First, no obscene publication or picture ; second, no article or thing intended for the prevention of conception or procuring of an abortion ; third, no article or thing intended for an immoral use; fourth, no advertisement or notice giving information how or where either of the things before mentioned may be obtained or made; fifth, no envelope or postal card containing indecent or scurrilous epithets.

The penal clause imposes punishment in terms for the following offences : Depositing for mailing or delivery any of the herein before mentioned articles or things, or any notice or paper containing any advertisement relating to the aforesaid articles or things ; second, taking from the mail any letter or package in pursuance of any plan or scheme for disposing of

any

of the herein before mentioned articles or things. It is claimed by the counsel for the prisoner, and argued with great ingenuity that the words "articles or things ” mentioned in the penal clause refer only to the “ articles or things ” described by that name in the prohibitory clause, and set forth in the second and third subdivision of this clause, as above pointed out. Section 3895 provides that “all letters, packets, or other matter which may be seized or detained for violation of law shall be returned to the owner or sender, or otherwise disposed of; and it was claimed that Congress intended simply to empower postmasters to seize postal cards upon which indecent or scurrilous epithets are written, but did not intend to punish the mailing of them. Had the words “ articles or things " not appeared in the prohibitory clause of the statute, it would scarcely have been argued that a postal card was not an article or thing within the meaning of the penal clause, and the only question is whether, by using those words in the prohibitory clause, Congress designed thereby to restrict the application of the penal clause. Clearly it has not done so in terms. If Congress has failed to provide a punishment for the sending of scurrilous postal cards, it has also failed to provide one for the articles mentioned in the first and fourth subdivisions, namely : obscene publications and pictures, as well as cards, advertisements, and notices giving information where these things may be obtained or made. It would also follow that the word “things,” in the fourth subdivision, would be

Vol. II.)

UNITED STATEs v. PRATT.

(No. 5.

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restricted to the “ things mentioned in the second and third subdivisions, and that the sending of advertisements or notices where indecent publications and pictures might be obtained would not be illegal. A reference to the history of the postal card system, and the evident design of the enactment in question, will show that the objection is wholly untenable. Although postal cards have been in use for a very few years their great convenience has made them universally popular as means of sending short messages to correspondents and of circulating business advertisements. At the same time, as they are in the nature of an open letter, the temptation afforded by the fact that they may be read by anybody has subjected them to great abuse, and in England has caused the abolition of the whole system to be seriously discussed. Congress evidently designed by this section to prohibit this abuse, and to punish the sending of all indecent and scurrilous matter through the mails, so far as it had the power to do this without violating the sanctity of private correspondence.

So far as I am able to ascertain, the section in question has received judicial construction in but one case, namely, U. 8. v. Bott, 11 Blatch. 346, where it was held, that under the clause punishing the sending of "articles designed for the prevention of conception or the procuring of abortion,” the defendant could not show that the article deposited would not, in fact, have any tendency to produce this effect, and that its barmless character was known to him when he deposited it, it being sufficient that the article, when deposited, was put up in a form described in and manner calculated to insure its use for that purpose. It was also assumed in this case, though the point was not discussed, that it was also a misdemeanor to mail any advertisement or notice, giving information where any such article could be obtained, and that it was immaterial whether, in fact, the article or thing was at the place designated.

I can see no good reason why Congress should not punish the mailing of the articles specified in the first, fourth, and fifth subdivisions, as well as those specified in the second and third. Indeed the offence of sending scurrilous postal cards is more purely personal, more exasperating to the receiver, and more likely to lead to bad blood and to breaches of the

peace than any other specified in the act. Had the words “ articles or things ” been contained in the subdivisions immediately preceding the penal clause, there might be some foundation for the claim that it referred only to them ; but I cannot believe that Congress intended to select out from the middle of the prohibitory clause certain offences, and provide a punishment for them, without expressing such intent in clearer words than it has done in this section. It would certainly be a forced construction of the law to hold that Congress did not intend to punish the mailing of obscene publications, when by sec. 1785 it imposes a penalty upon employés of the government who aid and abet persons engaged in dealing in, sending or receiving them, thus punishing the accessary, but allowing the principal to escape.

I have been somewhat aided in the interpretation of this act by the case of the U. S. v. Hartwell, 6 Wall. 385. The prisoner in that case was charged with embezzlement, under the act of 1846, known as the subtreasury act, the 16th section of which provided :1. That if

any

officer to whom it applied should convert to his own use,

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