476
FEDERAL REPORTER,
vol. 45.
ex-convicts more severely for the same offenses than it does those not theretofore convicted of a felony, and is within the prohibition of the fourteenth amendment of the federal constitution, which declares no state shall "deny to any person the equal protection of the laws." This statute does not deny the petitioner the equal protection of the laws, within the meaningof this amendment. Every other person as he has been would be subject to the like punishment as that he has received. This is all the amendm!lnt means. Thus the supreme court has decided that an Alabama statute which prohibited a white person and a negro living togetheriu adulteryis not in conflict with this amendment, although it prescribed penalties more severe than those to which parties would be subject were they of the same race and color. Pace v. Alabama, 10611. S. 583, 1 Sup. Ct. Rep. 637. The court said: "The punishment of such offending persons, whether white or black, is the same." The court said in another case, in discussing the fourteenth amendment: "It has respect to personsand classes of persons. It means that no person or class of persons shall be denied the same protection of the law-swhich is enjoyed by other persons or other classes in the same place, and under like circumstances." Missouri v. Lewis, 101 U. S. 31The petition is not sufficient in its allegations to entitle the petitioner to a writ of habell8 corpus, and the writ should be denied, and it is so ordered.
UNITED STATES (Dt8trfet
v.
SMITIt.
Oourt, E. D. Wisconsin. March 28, 1891.)
OB8CENB PoBLICATION8-!NDICTMENT-DEMUBRER.
Though a defendant, under indictment for sending obscene matter through the mails; is' not entitled, as under the English practice, W take the opinion o,fthe i:Jourt by demurrer whetber set forth was, or was not obscene, it is proper for the court to construe the document, and decide whether a verdict establishing its obscenity would be set aside as against evidence IIIld reason.
S.
SAME-'-ALLEGBD MEDICAL TREATISE.
8.
A pamphlet purporting to be a printed medical treatise touching certain foul private'diseases and their cure, and a list of 12() printed questions touching some 7 private diseases to be answered by anyone afflicted with such disorders, after reading ,the pamphlet, tho1,lgh without illustration, and expressed in cleah and wholesome language, if intended for promiscuous circulation through the,mails, are obscene publications within Rev. St. U. s. § 8893, as amended by 25 St. 496.
SAME-PRIVILEGED COMMUNICATIONS.
Such publications will not, because of their character, be considered privileged communications by a physician to a patient, in the absence of a showing that the defendant is a physician, and that the persons to whom they wel'e addressed' were his patients.
IndictmenHor Violation.of Postal Law. Elihu Ooliman; U. S.Dist.Atty. J. V. Quarles, for defendant. JENKINS, J. The defendant demurs to an indictment preferred under Rev. St., § 3893, as amended by 26 St. 496. 'fhe indictment contains
UNITED STATES V.SMITH.
477
two connt!!; the first charging that the defendant knowingly deposited in a certain post-office, mailing and delivery, an obscene, lewd, and lascivious pamphlet, entitled" A Monitor for Meh,"a copy of which is attached to the indictment. The second count embraces a similar charg(· rer>pecting a paper entitled "Questions for Men Only," also attached to the indictment. It is insisted that neither of these documents is obscene within the meaning of the statute. The pamphlet set forth in the first count of the indictment purports to be a printed medical treatise touch ing certain foul .private diseases, and their cure, issued by one "Gun Wa," claiming to be a "Chinesegraduate of botany." The introduction states that it is presented for the consideration of the American public, and -. to be intended for promiscuous circulation. The document embraced within the second count of the indictment purports to be issued by Wa, Chinese Physician," and consists of 120 printed questions, touching some 7 private diseases. They are to be answered by anyone afflicted with any of such disorders, after he shall have read the pamphlet set forth in the first count·. It was claimed at the argument, and conceded by the attorney for the government,that the defendant is entitled to take the opinion of the court by demurrer whether the matter set forth was or was not obscene. That would seem to be the rule in England, but is one not followed in this country. Ordinarily it is a question for the determination of a jury. But it is -within the province of the court to construe the objectionable document so far as necessary to decide whether a verdict establishing its obscenity would be set aside as against evidence and reason. U. S. v. Bennett. 16 Blatchf. 338; U. S. v. Clarke, 38 Fed. Rep. 500. The test was laid down by Chief Justice CoCKBURN in Reg. v. Hi£klin, L. R. 3 Q. B. 360: Is the tendency of the matter charged as obscene to deprave and corrupt those whose minds are open to such immoral influences, and into Whose hands a publication of this sort may fall? That test is applied to the statute under which this indictment is framed. U. S. v. Bennett, suprajU. S.v. Wightman, 29 Fed. Rep. 636; U. S. v. Bebout, 28 Fed. Rep. 522. The purpose of the .statute was to purge the mails. Congress, possessing the power of exclusion, declines to permit the mail to become a vehicle for the transmission and circulation of mental filth. To that end tllestatute should receive a liberal interpretation, consistently with recognized rules of construction. The words "obscene," and "lascivious." as employed in the statute, are not used interchangeably. "Obscene" has a broader signification than "lascivious," comprehending whatever is impure, unclean, indecent, foul, filthy, or disgusting. It is said of this pamphlet that it is a medical treatise without illustration, and, with a possible exception, expressed in clean and wholesome language. In an able argument the counsel for the defendant asserted that it was the highest duty to instruct the youth in the anatomy of the human body, and the law of its nature, warning them of the grievous results flowing from infraction of such law; and that a work upon such a subject, devoid of filthy language, cannot properly be classed as obscene. Whether act or language is obscene depends upon
478 . "The p'Utilicexposure of thepevsoni is! most obscene" yet [the 'ofJthepersonto it is not only innocent, "but is' a; dictated by positIve duty... ,Instruction touching the organa (:)f the body, 'under proper -circumstances, is not reprehensible; hut Buch instruction to a: ,mixed assemblage of the youth of both sqxes might be 'most demoralizing. The condition determines the quality .of the act. Thus the nude in art is not of necessity indecent, but it may be soconditionad as tacoma under the ban of condemnation. Here is a 'publication touching certain loathsome diseases of the generative organs. Such a document, intended for general circulation, liable to fall into the hands. of the immature,imight well be deemed corrupting. It is of no consequenee that the language employed may be pure. The law has relation as well to the subject as to its dress. Both the subject and its treatment must be free from obscenity; The most debasing topic may he presented in the choicest language. In such garb it is the more dangerQus., Impure suggestion. clothed in pleasing attire allures and eorrupts, when bald filth would disgust and repel. It is claimed for that they were addressed by a physician to a patient, and therefore privileged. I cannot doubt that proper and necessary communication between physician and patient touching any disease may properly be deposited in the mail. The statute is not to receive a strained construction. It is aImed at the obscene. It was not enacted in the interest of the prude. .But can these publications be properly so classified? There is nothing upon the face of this indictment connecting the defendant with "Gun Wa," the "Chinese graduate of botany,"-whatever that may mean. The court ca.nnot take judicial cognizance of the fact-if it bea fact-that "Gun Wa," is the Chinese synonym for "Smith." Nothing appears to indicate that the .defendant was a physician, or that the person to whom these publications were addressed was his patient. So Jar as the record discloses, he was a mere volunteer, sending this unsavory literature through the mails. If, as was assumed, the. defendant was in fact "Gun Wa," using that designation as a trap in which to catch the ignorant and the credulous, he was then a mere charlatan, circulating promiscuously these publications upon subjects that I1refou1, unleSs purged of obscenity by conditions. rendering their \lse proper. ' It cannot be said that under any circumstanceSQ' verdict declaring· these documents obscene would be contrary to reason and commonsense. To the contrary, it must be said that they are 'manifestly foul unless the occasion and condition of their employment should justify. their use; and that must he determined by a jury. The demurrer is overruled.
M'CULLO}{' C/. AsSOCL\TIONHORLOGERE SUISSE.
479
·McCuLLOH
v. :AssoClATION HORLOGERE ,SV1SSE
et al.
(Circuit qourt, S.: D. New York. March 14,1891.) PATENTS FOR INVENTIONS-INSOLVENOy-RtGHTS OF RIlOErVlIB;··
Though it be conceded that under Rev. St. U. S. § 4898, the legal title to patents does not pass to the receiver of an insolvent debtor, the receiver of a dissolved corporation. which was the equitable owner of patents, may maintain a suit to compel the holder of the legal title to convey to him.
In Equity. Antonio Knauth, for complainant. John H. Kitchen, for defendants.
J. This bill is' brought to set aside certain assignments of W patents nll1qe by the dlilfendant Pailard to the defendant the Horlogere:Suisse, and to compel the last-named defendant to assign the patents to the complainant, the averments of the bill being that the assignments were made in fraud of the rights of the Non-Magnetic Watch Company, as equitable owner of the patents. It appears by the bill that the Non-Magnetic Watch Company was dissolved as a corporation, and the complainant was appointed receiver, by a decree of the supreme court of this state, and that by force of the decree,and the statute upon which it proceeded, the complainant, as receiver, became vested with all the estate, .real and personal, 'of the dissolved oorporation, including its· property in the inventions described in the several letters patent. The defendants have demurred to the bill, and insist by their demurrer that the complainant cannot maintain the action, because it does not appear that there has ever been any assignment to the complainant of the patents by the Non-Magnetic Watch Company. His argued in support of the demurrer that no interest can be acquired in letters patent except by an instrument in writing, under section 4898 of the Revised and in support of this contention the cases Statutes of the are cited which hold that the legaltiUe to a patent does not. pass by a sale of the patent upon an execution against the owner, or to his assignee in .insolveney by an .assignment. of his property by the. court, or by a general assignment of all his. property to a trustee for the benefit of creditors, or by the appointment of a receiver of the. estate of an insolvent debtor·. For .the purposes of an action like the present,it is quite immaterial whether the complainant acquired or did not acquire the legal title to the patentl! in suit.. If he did not, inasmuch as the corporation became extinct by its dissolution when he was appointed its receiver, no one else can acquire legal title, and for all practical' purposes any· title which did not vest in the complainant is extinguished. But the Mmplainant acquired all the equities of the dissolved corporation. That being so, he can maintain anactiQn against one having the. legal title to. the patent, in which it is alleged that the title of the defendant is subordinate in equity to the title of the complainant, and in· which the relief BOught is to compel the defendant to execute a conveyance of the patents.