Page:Federal Reporter, 1st Series, Volume 10.djvu/105

 BATES V. UNITED STATES. 93 �4. SaME— iNEFFECnVENESS OF THE ThING SenT, No DepENCB. �The fact that what was sent, in anawer to a letter asking for something to procure abortion or prevent conception, would not, of itself, have thai eliect, is no defence to an indictment under this statute. �5. Praoticb— Error to District Court— Affirmamce dp Jddgment— Discre- �tion AS to Degrbe of Punishment. �In a criminal case, upon error to the district court the circuit court, though afflrming the judgment of the lower court, is not bound to impose the same v, sentence ; it can award execution in conformity with its own opinion, derived from the facts apparent upon the record, as to the degree of punishment which should be imposed. �Error to the District Court. �Osgood e Riggle and Frank Baker, for plaintiff in error. �Joseph B. Leake, Dist. Atty., for the United States. �DauMMoND, G. J. This was an indictment against the plaintiff in error, charging him with violating different provisions of section 3893 of the Revised Statutes. He was found guilty by the jury and sen- tenced to fine and imprisonment. A motion in arrest of the sentence on account of the insufficiency of the indictment was made in the district court, and the refusai of the court to grant the motion is one of the principal errors relied on in this court. The section of the stat- ute referred to, as amended by the act of July 12, 1876, declares the following shall be non-mailable matter : Any book, pamphlet, picture, paper, writing, print, or other publication which is obscene, lewd, lascivious, or indecent, or any article or thing designed or intended for the prevention of conception, or procuring abortion, or any article or thing intended or adapted for any indecent or immoral use, or any written or printed card, circuiar, book, pamphlet, advertisement, or notice of any kind giving information directly or indirectly where, or how, or of whom, or by what means any of these matters, articles, or things before mentioned may be obtained or made, or any letter upon the envelope of which, or postal card upon which, indecent, lewd, obscene, or lascivious delineations, epithets, terms, or language may be written or printed ; and any person who shall knowingly deposit, or cause to be depositod, for mailing or delivery, anything declared to be non-mailable matter, is deemed guilty of a misdemeanor, and liable for every offence to a fine or imprisonment at hard labor, or both. �One of the counts of the indictment charges the defendant with sending by mail a book, the title of which is given, and it is alleged that it was of so indecent and obscene a character that it was im- proper to state its contents. Varions other counts of the indictment ��� �