Dunlop v. United States

[Syllabus from pages 486-488 intentionally omitted]

This was a writ of error to review the conviction of the plaintiff in error for unlawfully depositing and causing to be deposited, upon the days set out in the various counts, in the post office at Chicago, for mailing and delivery, a newspaper called the 'Chicago Dispatch,' containing obscene, lewd, lascivious, and indecent matter. There were 32 counts in the indictment. The district attorney, under order of the court, elected to proceed upon the first, sixth, twelfth, sixteenth, twenty-sixth, and thirty-second counts. The other counts were quashed, and no evidence was offered to sustain the first count.

The sixth count was as follows:

'And the grand jurors aforesaid under their oath aforesaid do further present that the said Joseph R. Dunlop, on the 6th day of July, in the year aforesaid, at Chicago aforesaid, in the division and district aforesaid, unlawfully did knowingly deposit and cause to be deposited in the post office of the said United States there, for mailing and delivery, a large number of copies, to wit, one hundred copies of a certain paper, print, and publication entitled 'The Chicago Dispatch,' one of which said copies was then and there directed to 'Mr. Montgomery,' at Chicago aforesaid; another to 'R. M. Williams, Box 801,' at St. Louis, Missouri, and the rest to divers persons, respectively, to the said grand jurors unknown; and each of which last-mentioned copies was then and there a copy of the five-o'clock edition of the day in this count aforesaid and number 840 of the said paper, print, and publication, and contained (amongst other things) on the eleventh page thereof, and under the headings of 'Personal' and 'Baths,' certain obscene, lewd, lascivious, and indecent matters in print, of too great length and of too indecent character to be here set forth in full, against the peace and dignity of the said United States and contrary to the form of the statute of the same in such case made and provided.'

The other counts differed from this only in the dates of the newspapers alleged to have been mailed, and the days upon which they were deposited in the post office.

The testimony introduced by the government tended to show that there was published in the city of Chicago, during the year 1895, and the three years immediately prior thereto, a daily and weekly newspaper entitled 'The Chicago Dispatch'; that the plaintiff in error, Joseph R. Dunlop, was the publisher of said newspaper during those years; that copies of the Chicago Dispatch in large numbers were deposited in the Chicago post office for mailing and delivery during said years, daily except Sunday; that the copies of the Chicago Dispatch described in the indictment as directed to 'Mr. Montgomery' at Chicago, and the copies of the Chicago Dispatch described in the indictment as directed to 'R. M. Williams, Box 801,' at St. Louis, Mo., were deposited for mailing and delivery at the post office in Chicago on the dates of said several copies; that all the copies of said Chicago Dispatch, so directed to said R. M. Williams and Mr. Montgomery, contained therein, under the headings of 'Personal' and 'Baths,' certain advertisements that were obscene, lewd, lascivious, and indecent; and that the plaintiff in error, by reason of being the publisher of said Chicago Dispatch, was liable for the alleged depositing in said post office of said newspapers, so directed to said R. M. Williams and Mr. Montgomery.

Defendant was found guilty, and, after motions for a new trial and in arrest of judgment had been overruled, was sentenced to imprisonment to hard labor in the penitentiary for two years, and to pay a fine of $2,000 and costs.

Thereupon he sued out this writ, assigning 61 errors as grounds for reversal. These errors related to the refusal of the court, prior to the trial, to order the district attorney to file the printed matter, alleged to be obscene, or copies of the same; to the admission of improper testimony, including all the newspapers introduced; to the refusal of the court at the close of the testimony of the government to direct a verdict of not guilty; to prejudicial remarks made by the district attorney in his argument to the jury; to the giving of improper instructions; and to the refusal to give proper instructions requested on behalf of the plaintiff in error.

Wm. S. Forrest and A. H. Garland, for plaintiff in error.

Atty. Gen. Harmon and Asst. Atty. Gen. Dickinson, for the United States.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.