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272 U.S. 655
Submitted Nov. 23, 1926.
Decided Dec. 13, 1926.
[272 U.S. 655, 656] Messrs. J. W. Morrow and J. N. Hutchins, both of El Paso, Tex., for petitioner.
The Attorney General and Messrs. William D. Mitchell, Sol. Gen., of Washington, D. C., O. R. Luhring, Asst. Atty. Gen., and Harry S. Ridgely, of Washington, D. C., for the United States.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
The Circuit Court of Appeals-4 F.(2d) 765-affirmed a judgment of conviction under an indictment which charged that petitioner deposited in the post office at El Paso, Tex., for conveyance through the mails, an obscene, lewd, and lascivious printed card and letter, in violation of section 211, Criminal Code (Comp. St. 10381). There were 11 counts, identical in all respects, except that each named a different addressee, generally an unmarried woman.
Copies of the card and letter were set out in haec verba. They were intended to advertise the Queen Ann Private Home for unmarried women during pregnancy and confinement, who prefer to be away from home during such time in order 'to preserve individual character or family reputation.' The letter, ostensibly intended for a doctor, states:
The home is a private place for the care and protection of a few unfortunate women 'until the time when they may return to their homes and friends, free from the burden of their mistake, to become useful members of society.' 'We find homes for infants by adoption when desired, or provide board for them at reasonable rates.'
Only persons recommended by reputable physicians are accepted; and it invites visits by physicians. [272 U.S. 655, 657] Section 211, Criminal Code, was taken from section 3893, Revised Statutes. The pertinent portions follow:
The Solicitor General, with his usual commendable candor, after calling attention to the facts disclosed by the record and relevant opinions, adds:
In Swearingen v. United States, 161 U.S. 446, 450 , 16 S. Ct. 562, 563 (40 L. Ed. 765), where the indictment charged that the plaintiff in error mailed a newspaper containing an 'obscene, lewd, and lascivious article,' contrary to section 3893, Revised Statutes, this court said:
Notwithstanding the inexcusable action of petitioner in sending these advertisements to refined women, it is not possible for us to conclude that the indictment charges an offense within the meaning of the statute as construed by the opinion just cited. The motion to quash should have been sustained by the trial court.
The judgment below must be reversed, and the cause remanded to the District Court, Western District of Texas, for further proceedings in harmony with this opinion.