Bartell v. United States, 227 U.S. 427 (1913)
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Scribd Government DocsBartell v. United States, 227 U.S. 427 (1913)
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Scribd Government Docs227 U.S.
427
33 S.Ct. 383
57 L.Ed. 583
LESTER P. BARTELL, Plff. in Err.,
v.
UNITED STATES.
No. 691.
Argued and submitted January 14, 1913.
Decided February 24, 1913.
Mr. Joe Kirby for plaintiff in error.
[Argument of Counsel from pages 427-429 intentionally omitted]
Solicitor General Bullitt for defendant in error.
[Argument of Counsel from page 429 intentionally omitted]
Mr. Justice Day delivered the opinion of the court:
The plaintiff in error was indicted under 3893 of the Revised Statutes, (U. S.
Comp. Stat. 1901, p. 2658), which declares certain matter unmailable, for
depositing a letter alleged to be obscene, in a postoffice of the United States.
Upon trial he was convicted, and was sentenced to a term in the penitentiary.
The case is brought here to review alleged errors in failing to sustain objections
made to the indictment in the court below.
The indictment charged that Bartell did on the 24th of November, 1911, at
Sioux Falls, in the county of Minnehaha, state of South Dakota, unlawfully,
wilfully, knowingly, and feloniously deposit in the United States postoffice at
Sioux Falls aforesaid, for mailing and delivery by the postoffice establishment
of the United States, certain nonmailable matter, to wit: 'A letter inclosed in an
envelop, which said letter was then and there filthy, obscene, lewd, lascivious,
and of an indecent character, and is too filthy, obscene, lewd, offensive, and of
such indecent character as to be unfit to be set forth in this indictment and to be
spread at length upon the records of this honorable court. Therefore the grand
jurors, aforesaid, do not set forth the same in this indictment; and which said
envelop containing said letter was then and there directed to and addressed as
follows: Miss Zella Delleree, Stevens Point, Wisconsin, he, the said Lester P.
Bartell, then and there well knowing the contents of said letter and the
character thereof, and well knowing the same to be filthy, obscene, lewd, and
lascivious, and of an indecent character.'
3
The plaintiff in error appeared and demurred to this indictment for the reasons
following:
'I. That the facts stated in said indictment are not sufficient to and do not
constitute a crime.
'II. That no facts are stated sufficient to notify this defendant of the nature and
cause of the accusation for which he is now placed on trial, as required by
article 6 of the Amendments to the Constitution of the United States.'
The court overruled the demurrer. The same objection, in substance, was taken
by motion in arrest of judgment after conviction, and the question presented
here is the alleged insufficiency of the indictment.
It is elementary that an indictment, in order to be good under the Federal
Constitution and laws, shall advise the accused of the nature and cause of the
accusation against him, in order that he may meet the accusation and prepare
for his trial, and that, after judgment, he may be able to plead the record and
judgment in bar of further prosecution for the same offense.
While it is true that ordinarily a document or writing essential to the charge of
crime must be sufficiently described to make known its contents or the
substance thereof, there is a well-recognized exception in the pleading of
printed or written matter which is alleged to be too obscene or indecent to be
spread upon the records of the court. It is well settled that such matter may be
identified by a reference sufficient to advise the accused of the letter or
document intended without setting forth its contents. United States v. Bennett,
16 Blatchf. 338, Fed. Cas. No. 14,571; Rosen v. United States, 161 U. S. 29, 40
L. ed. 606, 16 Sup. Ct. Rep. 434, 480, 10 Am. Crim. Rep. 251.
The cases were fully reviewed by Mr. Justice Harlan, speaking for the court, in
the Rosen Case, and after stating the right of the accused to be advised of the
nature and cause of the accusation against him with such reasonable certainty
that he can make his defense and protect himself against further prosecution,
the doctrine was thus summarized (p. 40):
10
'This right is not infringed by the omission from the indictment of indecent and
obscene matter, alleged as not proper to be spread upon the records of the court,
provided the crime charged, however general the language used, is yet so
described as reasonably to inform the accused of the nature of the charge
sought to be established against him; and . . . in such case, the accused may
apply to the court before the trial is entered upon for a bill of particulars,
showing what parts of the paper would be relied on by the prosecution as being
obscene, lewd, and lascivious, which motion will be granted or refused, as the
court, in the exercise of a sound legal discretion, may find necessary to the ends
of justice.'
11
We find, upon applying this doctrine to the instant case, that it was specifically
charged that the letter was mailed by the accused in violation of the statute,
upon a day named, at the postoffice, in a town and county named and within
the district; that its contents were well known to the accused, and were so
filthy, obscene, lewd, and offensive, and of such indecent character, as to be
unfit to be spread upon the record of the court, and that the letter was inclosed
in an envelop which was addressed to the person and place specified in the
indictment. There was no attempt on the part of the accused to require a bill of
particulars, giving a more specific description of the letter, or any further
identification of it, if that was necessary to his defense. Under the Federal
practice he had a right to apply for such bill of particulars, and it was within the
judicial discretion of the court to grant such order, if necessary for the
protection of the rights of the accused, and to order that the contents of the
letter be more fully brought to the attention of the court, with a view to
ascertaining whether a verdict upon such matter as obscene would be set aside
by the court. United States v. Bennett and Rosen v. United States, supra. In
Durland v. United States, 161 U. S. 306, 315, 40 L. ed. 709, 712, 16 Sup. Ct.
Rep. 508, it was held that a general description of a letter, identified by the time
and place of mailing, when it was mailed in pursuance of a scheme to defraud,
was sufficient, in the absence of a demand for a bill of particulars.
12
As to the objection that the charge was so indefinite that the accused could not
plead the record and conviction in bar of another prosecution, it is sufficient to
say that in such cases it is the right of the accused to resort to parol testimony to
show the subject-matter of the former conviction, and such practice is not
infrequently necessary. United States v. Claflin, 13 Blatchf. 178, Fed. Cas. No.
14,798; Dunbar v. United States, 156 U. S. 185, 39 L. ed. 390, 15 Sup. Ct. Rep.
325; Tubbs v. United States, 44 C. C. A. 357, 105 Fed. 59. In the Dunbar Case
it was stated that other proof beside the record might be required to identify the
subject-matter of two indictments, and the rule was laid down as follows (p.
191):
13
'The rule is that, if the description brings the property in respect to which the
offense is charged clearly within the scope of the statute creating the offense,
and at the same time so identifies it as to enable the defendant to fully prepare
his defense, it is sufficient.'
14
The present indictment specifically charged that the accused had knowingly
violated the laws of the United States by depositing on a day named, in the
postoffice specifically named, a letter of such indecent character as to render it
unfit to be set forth in detail, inclosed in an envelop bearing a definite address.
In the absence of a demand for a bill of particulars we think this description
sufficiently advised the accused of the nature and cause of the accusation
against him. This fact is made more evident when it is found that this record
shows no surprise to the accused in the production of the letter at the trial, and
no exception to its introduction in evidence, and there is no indication that the
contents of the letter, when it was produced, did not warrant the description of
it given in the indictment.
15
Judgment affirmed.
