326
FEDERAL REPORTER,
vol. 38.
demand that the exact issue to be met should be made plain, it is the better practice to strike out of the pleading all allegations that are immaterial, but which may tend to confuse the issue to be tried. The statute itself makes plain what the information should charge as ground for a ment forfeiting the charter. It must, by proper averment, show that in carrying on the business of the bank some act or transaction in violation of the provisions of title 62 of the Revised Statutes was done, and that the directors were either the doers thereof, or knowingly permitted it to be done by some officer, agent, or servant of the bank. The motion is therefore sustained in this particular.
UNITED STATES 'lI. DAVIS.
(Olrcuit Oourt,
w: D.
Tennessee. February 16,1889.
1.
OFFENSES AGAINST POSTAL LAwS-INDECENT POSTAJ",CARDS-AcTS JUNE AND SEPTEMBER 26, 1888.
18,
I.
The courts must reasonably construe the acts of congress, so that hyper· critical judgment shall not take advantage of the elasticity of lang-uage necessarily general, to bring within it expressions merely rude, impolite, or not in good taste, but certainly to include obvious indecency of thought or expression, according to the common sense and understanding of ordinary men. And this is also. the test as to the other terms used to describe the offense.
SAME-CoNs·rRucTION.
8.
Not only may the precise words be scrutinized. but also the context and the whole writing, which shall display, when taken together, the obnoxious meaning.
SAME.
4.
A postal·card concerning the return of an article, about which the writer was hi an angry temper, which contained words ordinarily called profane, and expressions too vulgar for quotation by the court, the indecency of which was disguised by the use of an initial letter, words reflecting on the character and conduct of the addressee, and a political ep,ithet intended to be defamatorl' all taken together, show the writing to be' indecent," "scurril· ous, "and defamatory," and being calculated. and obviously intended, to reo flect on the addressee, was held to be within the statute. The obnoxious character of the writing is a question of fact for the jury. and not of law for the court. See U. 8. v. Olney, in note at end of case. ·
SAME-QUESTION OF FACT.
Criminal prosecution against G. W. Davis. H. W. McCwry, .Dist. Atty. Tho8. M. Kemp, for defendant. HAMMOND, J. The defendant has been found guilty of depositing a postal-card in the mails in violation of the postal laws of the United States, especially the act of June 18, 1888, c. 394, as amended by the acts of June 18, 1888,e. 394, and of September 26, 1888, c. 1039, 25 St. 187, Id. 496. The verdict, however, is subject to the opinion of the court, whether the language of the postal-card falls within the de-nunciations of the statute. It clearly does. The act makes it criminal
UNITED STATES V. DAVIS.
327
to deposit or cause to be deposited for mailing or delivering any postalcard containing delineations, epithets, terms, or language of an "indecent, lewd, lascivious, obscene, libelous, scurrilous, defamatory, or threatening character, or calculated. by the terms or manner or styIe of display, and obviously intended, to reflect injuriously upon the character or conduct of another." Since the extension by this act of former statutes on this subject there can be no doubt that that which is written on postalcards must be clean and decent, and wholly free from the objections embodied in the language which has been quoted from the act of congress. Of course the courts must reasonably construe the words of the act, and not allow a hypercritical judgment to take advantage of the elasticity of the language used by congress, necessarily so general in its description of the offense, by bringing within the act words or thoughts that are only rude, impolite, or not in good taste according to the standard of decency prescribed by the purists in language and thought. But, on the other hand, obvious indecenay of thought or expression, according to the commOn sense, should not escape the penalty of this statute, nor that which obviously is calculated and intended to reflect injuriously upon the character or conduct of him who complains or is mentioned in the writing. And not only may the precise words be weighed in determining the question, but the whole context of the writing, and its evident spirit and tone, as they "display" the meaning of those words, may be looked to by the court and jury. Inasmuch as the act does not include" profane" language in its description of the offense, except as it may be embraced in the other terms used by congress, and since in the common understanding the word "damned" is called" profanity," it may be doubted if the use of that word was intended to be punished always. But this writer says: "You can order car back, and be damned." In connection with the next phrase, which for sake' of decency I shall not quote, although they have no dependence up'on each other, and in connection with the whole writing in its tone and spirit, it is both "indecent" and "scurrilous" in the sense of the lexicographers, as well as the common understanding of its use. The next phrase above referred to is so vulgar as to admit of no doubt of its indecency, and the writer knew it to be so, and confessed it by the use of only an initial letter for the most offensive word. If it be only "slang," still it is of that coarse, gross, and essentially vulgar kind that it cannot· be placed upon a postal-card WIthout offending all sense of decency, even among the commonest and coarsest of men, and the use of all such phrases is prohibited by this new act of congress. Again_ the writer says: "You are sharp, all of you are on the beaL" This, again, may be "slang," but it is calculated, and obviously intended, to reflect injuriously upon the character and conduct of the addressee. . Finally, he says: "Tell that Radical to send my book back as he agreed." To those familiar with the bitterness of current political strife and its evolution of distasteful epithets there will be no doubt that this one was intended for opprobrium of a severe kind, innocent as the epithet seems to common speech, and it was thought by the writer· to be" defamatory"
--------_.
328
unqestionably. If the suhject-matter of this writing were political, having in view the almost unrestrained license in the use of defamatory epi; thets in political writing of almost every kind. except the very highest grade, and the fact that such epithets. which in the beginning are intended to denote ignominy and turpitude, become in the progress of political conflict, by a process of development, badges of honor and distinction, and are cheerfully accepted as such, I should say that this phrase did not come within the act of congress and was blameless, like "Abolitionist," "Black RepUblican," "Copperhead," "Carpet-Bagger," "Scalawag," "Rebel Democracy," "Confederate Brigadier." "Bourbon," "Free Trader," "Tariff Robber," "Mugwump," and the like. But the subject-matter of this writing is the return of a patent model of a car of some kind about which the writer was angry and ugly in his temper, and about which he WrItes "indecently,"" scurrilously," and with evident purpose to defame and injuriously reflect upon the conduct of his corrp.spondent. The commonplace and excessively vulgar style of the writing does not relieve it from its criminal character under this statute. One can be commonplace, and even vulgar, without being indecent and defamatory in the legal sense of the statute, as one may be either of these, or otherwise may violate the statute, without being commonplace or vulgar. That which shocks the ordinary and common sense of men as an "indecency" is the test, as it is also with the other descnptive terms ofthe act. Let the defendant be fined $25, and imprisoned until the fine and costs are paid. So ordered. NOTE. In the case of U. S. v. Olney, (W. D. Tenn., at Jackson, April term, 1889,) the defendant wrote upon the postal-card as follows, viz.: "Mr. Editor: I thought that you was publishing a paper for the wheel, but I see nothing but rotten Democracy. I am a Republioan, and a wheeler, and can take your paper and Democracy, and go to hell with it." The court was aske by the district attorney to charge the jury, as a matter of law, that the was "scurrilous," as laid in the indictment, but de· clined to so charge, and left it to the jury as a matter of fact to say if the words were "scurrilous, "upon a charge substantially conforming to the foregoing opinion, and the jury found a verdiot of guilty.-(REPORTEB.
IOU
MACDONALD f1.
McLEAN. 26, 1889.)
(O';"cuit Oourt, 8. D. Oalif07'nia.
P.ATBNTS FOR INvENTIONS - PATENTABILITY-N OVELTY-JOINT MARKING TOOL.
surfaces, having on its face a V-shaped blade with concave sides, for making the indentation or joint and con vexing its sides, and laterally-concaved sur· faces on its face on each side of and adjoining the blade, and continuing the curvature of its sides for convexing the edges and adjacent surfaces of the joint. the whole face being convexed in the direction of its length, and l\ handle and shank being bolted between the side pieces above the blade, which is also clamped between them. For many years before the application tools laterally concave and longitudinally convex on their faces were in general use, and produced, in substantially the same way, substantially the same ro-
an implement for marking and dressing the joints of cement pavements and
Letters patent No. 334.125, January 12,1886, to Malcom MacDonald, are for
