Page:Federal Reporter, 1st Series, Volume 10.djvu/109

 BATES V, UNITED STATES. 97 ���NOTE. �Several interesting and important points are made in the foregoing decision. These may be grouped as follows: �1. Decot Solicitation. It is held to be no defence to an indictment under the statute for sending an obscene book by mail that the boolt was mailed actually to a detective who wrote for it soliciting it under a flctitious name, to which name it was addressed. A similar point was decided in the same way by Benedict, J., in U. S. v. Bott, 11 Blatchf. 346 ; that leanied judge holding it waa no defence to an indictment for sending a powder designed to procure an abortion that the act was elicited by a decoy letter. It is tru© that we have a ruling from Judge Dillon {U. S. v. Whittier, 5 DUl. 35) that a sealed letter addressed to a decoy, and therefore not " giving information " in the sense of the statute, was not within the prohibition of the statute. But even supposing that Judge Dillon was right in this conclusion, (as to which I may be permitted with all respect to that excellent jurist to express my doubts,) the case is distinguishable from that now before us, which is that of sending an obscene book accompanied with drugs. The sending an obscene book, like that of sending a noxious drug, is made indictable by the statute without the qualification that it should give information, which is the condi- tion applied to that section of the act under which the prosecution before Judge Dillon took place. The statute makes it indictable to send by mail any "obscene, lewd, or lascivious book, pamphlet, picture, paper, print, or other publication of an indecent character." Now, if the indictment were for the publication of an obscene libel at common law, no one would pretend that it would be a defence that the libel put in evidence on the trial had been sought for the express purpose of being put in evidence. That a sale to a party requesting the sale for this very purpose is an adequate publication haa been repeatedly ruled. Rex v. Burdett, 4 B. & Al. 95; Rex v. Wegener, 2 Stark. N. P. 245; Brunsioiolt v. Harmer, 14 Q. B. 185; Com. v. Blanding, 3 Pick. Z^i; State v. Avery, 7 Conn. 268; Hazleton Coal Co. v. Megargel, 4 Barr, 324; Swindle v. State, 2 Yerg. 581. These rulings are in entire accordance with others in reference to other phases of crime. If I suspect, for in- stance, an employe of stealing money, I may mark money and have it exposed in such a way as to attract his attention ; and if he steal it and be subsequently presented for larceny, he cannot defend on the ground that a trap was laid for him. Keg v. Williams, 1 C. •& K. 195; Rex v. Headge, 2 Leach, 1033; R. & R. 160; Reg v. Egginton, 2 B. & P. 509; 2 Leach, 915; Rex v. Latorence, 4 Cox, G. C. 438 ; Reg v. Johnson, G. & M. 218 ; Reg v. Bannen, 1 G. & K. 295 ; U. S. V. Fuye, 1 Curt. 364; Pigg v. State, 43 Tex. 108. See Alexander v. State, 12 Tex. 540. �It is true that if I should put the piece of money in the possession of the defendant as an absolute gift, this would be a defence, for he could scarcely be held to taJie that which is given to him without any qualification ; but if I give it to him with a qualification, making him a mere bailee, (as where I give it to him as a messenger,) or if I leave it about my premises so as to v.lO.no.l— 7 ��� �