within the prohibited statute. If it had been suffered to go through the mail to the place to which it was addressed, it would not have been called for, but would have been sent to the dead-letter office, and could not have given to any person the prohibited information. The defendant doubtless intended to give the inhibited information, but the statute does not apply to a letter merely intended by the writer to give such information, but to a letter "actually' giving the information." If a letter of inquiry seeking the prohibited information had been written by an actual person, although under a feigned name, an answer in reply, giving such information, would present a case distinguishable, it would seem, from the one under consideration.

I place my judgment in this case upon the single ground that the sealed letter written by the defendant, addressed to a person who had no existence, and which on its face gave no information of the prohibited character, and which is brought within the statute only by the fictitious letter of inquiry written by a detective, is not the "giving of information" within the meaning of the statute. At all events, it is not certain that congress intended to punish such an act; and, therefore, upon the principle above mentioned, that criminal statutes are not to be extended by judicial construction to cases not clearly and unmistakably within their terms, my judgment is that this prosecution, on the admitted facts, cannot be sustained. It is a case of clear moral guilt, but not of legal criminality. There is no legal crime committed, although the defendant did not know of the fact which deprived his act of its criminal quality. 1 Bish. Cr. L. (5th ed.), sec. 262. In this respect the case falls within the principle strikingly illustrated by Rex v. McDaniel, above referred to.

In order to prevent misconception of the decision now made, it may be proper to add that we only decide the narrow and single point that the letter written and deposited by the defendant did not give the prohibited information, and hence is not within the statute. It would present a different case for consideration if the letter written and deposited by the defendant had been capable, into whosesoever hands it might have fallen or come, of imparting the prohibited information.

$1009. When decoy letters may be used.

We do not decide that decoy letters cannot be used to detect persons engaged, or suspected to be engaged, in violating criminal laws, but recognize the doctrine that such letters may be so used. We only decide that the defendant, by his answer to the decoy letter, did not, under the special circumstances of the case, bring himself within the criminal prohibition of the act of congress.

It would also present a different case if the letter of inquiry had been written by some person actually seeking the prohibited information for immoral purposes, although written under an assumed name, and the defendant had mailed such a letter as he actually wrote and deposited in this case. Congress has not, and probably cannot, make the business in which it is claimed the defendant is engaged, viz., of furnishing to whoever may apply therefor the means of preventing conception, to procure abortion, etc., illegal, and punish the same; but the state of Missouri may do so. If the state has done so, and the defendant is suspected of being engaged in the illegal business, undoubtedly decoy letters may be used for the purpose of discovering his violation of the law, as the cases above cited show. And if, in answer to a decoy letter, the prisoner deposits in the mail any written or printed card, circular, etc., which on its face gives information of the prohibited character, there is nothing in this

decision which precludes us from holding such a case, if it should arise, to be within the act of congress.

On the admitted facts, I am of opinion, for the reasons above given, that the prosecution cannot be maintained.

(Circuit Court for Illinois: 10 Federal Reporter, 92-96. 1881.)

Opinion by DRUMMOND, J.

STATEMENT OF FACTS.- 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 sentenced to fine and impris onment. A motion in arrest of the sentence on account of the insufficiency of the indictment was made in the district court, and the refusal of the court to grant the motion is one of the principal errors relied on in this court. The section of the statute 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, circular, 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 deposited, for mailing or delivery, anything declared to be non-mailable matter, is deemed guilty of a misdemeanor, and liable for every offense to a fine or imprisonment at hard labor, or both.

§ 1010. What is a sufficient description, in an indictment, of improper matter sent by mail.

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 improper to state its contents. Various other counts of the indictment allege that a letter addressed to a particular person, naming him, contained indecent matter. Other counts state that circulars were sent by mail from and to a place named and to a particular person, naming him, giving information where the article referred to [to prevent conception] could be obtained. The main ground of objection to the various counts of the indictment is that they do not set forth in language what was contained in the book, in the letters, or in the circulars. It is said that whether a book, or letter, or circular is within the terms of the law is a conclusion, and the court must be permitted to judge by the use of the special language, or if the case be a picture, or representation, or article, by a copy, or description of the same. I think this objection is not well taken. The object of the law is to exclude certain articles from the mail. If a book, pamphlet, picture, representation or article, it is sufficient as to that to describe it so as to identify it, or by stating to whom it was addressed, and then to allege that it is within the

terms of the statute, as that it is an obscene book, pamphlet, paper, print, picture, or otherwise, or an indecent thing. This is a rule which has been established by the supreme court of the United States in relation to offenses against the statute which prohibits interference with or the opening of letters intrusted to the mail by persons other than those to whom they are addressed (United States v. Mills, 7 Pet., 138; § 2452-53, infra), so that I think it is sufficient, in an indictment under section 3893, to describe the particular book, paper, pamphlet, etc., so as to identify the same, and then allege, in the language of the statute, that it was of the character there described. Consequently a count which declares that the plaintiff in error caused to be deposited in a postoffice of the United States (naming it), for mailing and delivery to the address of a certain person (naming it and him), an envelope then and there containing a printed advertisement and a written letter, which together were then and there a notice giving information where, how, and of whom might be obtained an article (naming it) designed and intended for the prevention of conception, was sufficient.

§ 1011. Mailing of improper matter in reply to a decoy letter is indictable. An objection was also taken because these various communications were sent through the mail in consequence of what are called "decoy letters," addressed to the plaintiff in error. The fact was that a detective of the post office department did send letters to the plaintiff in error under fictitious names, but he was requested to send the communications under fictitious names, and they were received by the detective under these various names. It was the case, therefore, where a person used another name to cause a communication to be sent by the mail to him under that name, and such communications were accordingly so received. They were, therefore, communications sent to a real person under a fictitious name, and of course it was as much an offense against this statute for the plaintiff in error to cause non-mailable matter to be deposited for mailing as though there had been no fiction in the case.

It is also objected that the district court erred in admitting testimony relating to an article transmitted by express. That testimony was admitted on the assumption that it was sent by the plaintiff in error in answer to a letter addressed to him, and simply for the purpose of explaining the facts connected with the offenses charged in the indictment, and not constituting an offense in itself, which, of course, it was not, under this statute. This testimony was received, under proper caution to the jury, with a statement explanatory of the reason why and for what it was admitted, and I think could not have prejudiced the jury against the defendant.

§ 1012. That articles sent were incapable of producing the alleged effect is no defense against an indictment for sending by mail improper matter.

It was also objected that the district court refused to allow the defendant to prove that certain pills which were sent by mail would not, of themselves, prevent conception or procure abortion. I think the ruling of the district court was correct upon that point. The language of the statute is not that the article must necessarily procure abortion or prevent conception, but that it is designed or intended to procure the one or to prevent the other; and these pills were sent in answer to a letter asking for something which might have that effect, and they were sent with the statement that they were just what the writer wanted.

§ 1013. Party properly indicted for acts done by an agent.

It is further objected that the deposit of the book, letters, circulars, etc., in

the mail was not done by the plaintiff in error himself, but by another person. The language of the statute shows clearly that it was intended to prevent any one from violating the law by another as well as by himself, and the jury were specially instructed by the district court that they must be satisfied that the act done was authorized by the plaintiff in error; in other words, that he caused it to be done through another. The district court was requested by the plaintiff in error to give numerous instructions which in terms were refused by the court, but the court instructed the jury generally upon the law of the case, and so far as there was anything material in the instructions asked for in favor of the plaintiff in error which the law justified the court in giving, they were given by the court, and I cannot see that there was any error in this respect. § 1014. On error to district court in criminal cases the circuit court may, in affirming the judgment, change the punishment.

On the whole, I am of opinion that the judgment of the district court must stand and be affirmed as to the rulings made during the trial.

This being so, it is insisted by the district attorney that this court cannot change in any way the punishment which was imposed upon the plaintiff in error by the district court; but in proceeding to pronounce final sentence and to award execution, this court must follow the precise terms of the conviction in the district court. I am not of that opinion. The language of the third section of the act of March 3, 1879, relating to this subject, is as follows: "And in case of an affirmance of the judgment of the district court, the circuit court shall proceed to pronounce final sentence and to award execution thereon." If this court must adopt the terms of the conviction of the district court, it is where the judgment of that court is affirmed, not only as to the rulings made during the trial of the cause, but also as to the sentence. The first section of the statute describes the cases in which a writ of error will lie where the sentence is a fine of $300 or imprisonment. In such case the party aggrieved by a decision of the district court may tender his bill of exceptions. I think one object of the statute was to give to the circuit court authority, not only over the rulings of the district court during the trial, but also over the degree of punishment imposed upon the party, if, upon the whole record before the circuit court, it should appear in the judgment of the court that the penalty was not in conformity with law; as where a fine was imposed when the statute authorized imprisonment only, or imprisonment where it authorized a fine only, or otherwise was unlawful, or where it was too lenient or too severe. In all these cases I think the opinion of the district court is subject to review by the circuit court, and may be changed. It is not necessary to decide whether the circuit court might alter the degree of punishment upon facts which might be established in the circuit court, but did not appear in the record. It is sufficient in this case that, upon the facts apparent upon the record as to the degree of punishment imposed, the opinion of this court differs from that of the district court; and this court will proceed, therefore, to pronounce final sentence, and to award execution in conformity with its own opinion as to the degree of punishment which should be imposed upon the party convicted.

§ 1015. Mailing prohibited articles.- Congress has the power to provide for the punishment of any person who shall sen 1 lottery tickets through the mails. Ex parte Jackson, 6 Otto, 736. See SS 971, 972.

§ 1016. It is no ground for directing an acquittal upon the trial of an indictment for having deposited a lottery circular in the mail, contrary to section 3894, Revised Statutes, declaring that "no letter or circular concerning lotteries shall be carried in the mail," and

that "any person who shall knowingly deposit or send anything to be conveyed by mail in. violation of this section shall be punishable," etc., that the letter was directed to a fictitious name. United States v. Duff,* 19 Blatch., 9. See § 970, 973.

§ 1017. Where the defendant was indicted under section 5480, Revised Statutes, punishing any person who, having devised any scheme to defraud, to be effected by opening correspondence with any other person by means of the postoffice establishment, shall, in executing such a scheme, or in attempting to do so, place any letter or packet in the postoffice; and the jury had been instructed that the fact had been established that some person had devised a scheme to defraud, to be effected by the agency of the postoffice, and this instruction was not excepted to, it was no error for the court to instruct the jury that the fact that the letter, charged to have been mailed in execution of the scheme, was in the handwriting of the defendant, was evidence from which the jury might infer that such letter was mailed by the defendant. Brand v. United States,* 18 Blatch., 387.

ance.

1018. It is an offense against the laws of the United States to deposit in the mails a notice giving information where an article designed for the prevention of conception can be obtained, though it is in the form of a sealed letter, unobjectionable as to its outward appearIt is not the form in which such matter is mailed, but its character, which fixes the criminality of the act. United States v. Foote,* 13 Blatch., 418. See §§ 958, 961–965, 970, 972. § 1019. A written slip, without address or signature, giving information where an article designed for the prevention of conception can be obtained, which is sent in response to an inquiry, is a "notice" within the meaning of the statute prohibiting the mailing of a "notice" of that character. Ibid.

§1020. In the absence of any statutory limitation, the language used in relation to the sending of forbidden articles or information through the mails must be given its full and natural meaning, and must be held to exclude everything prohibited, from whomsoever or howsoever coming. Ibid.

§ 1021. An instruction, given upon the trial of an indictment under the act of July 12, 1876, for depositing non-mailable matter in the mails, that "the test of obscenity within the meaning of the statute" is, as to "whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influences, and into whose hands a publication of this sort may fall," was held not to be erroneous. United States v. Bennett, 16 Blatch., 338 (3 2180-89). See § 937.

XIII. UNDER PENSION LAWS.

[See CONSTITUTION AND LAWS, §§ 482-495. Also § 2033, infra.]

SUMMARY - Withholding money from pensioner; offense complete, when, § 1022.- Retaining fees for other services, § 1023.— Withholding check or money, § 1024.

$1022. The offense of withholding money from a pensioner is complete when the money is received and is not paid over on demand, and is not a continuing offense unbarred by the statute of limitations so long as the money is retained. United States v. Bennett, §§ 1025, 1026.

§ 1023. Where a pension agent, in pursuance of a contract entered into between himself and a soldier's widow, retained out of a pension procured by him for her his legal fees, and a certain sum in addition for removing the imputation of desertion resting upon her late husband upon the rolls of the war department, and his costs and expenses, it was held that such retention was lawful, and not an offense under the law relating to the retention of pensions by pension agents. United States v. Snow, § 1027. See § 1032.

§ 1024. Under the laws of congress forbidding a pension agent or attorney to withhold the pension or any part thereof from the pensioner, it is an offense to withhold either the check or the money; and even when the agent was authorized to receive the money by valid power of attorney, the money thus collected is under the protection of the statute until paid to the pensioner unconditionally. United States v. Ryckman, § 1023.

[NOTES.-See §§ 1029-1042.]

UNITED STATES v. BENNETT.

(Circuit Court for New York: 12 Blatchford, 345–353.

Opinion by HUNT, J.

1874.)

STATEMENT OF FACTS.- The defendant was indicted in the district court in November, 1873. It was charged in the first count of the indictment that, as