498
FEDERAL R:El'(,RTER,
vol. 88.
sion that it ..sa substantial resemblance to extracts and decoctions of logwood; land not to lakes, your verdict will be for the plaintiff. Should you,on thebther hand, reach the conclusion that it bears a substantial resemblance to colors and paints, including lakes,whether dry or mixed, and not to dyewood, extracts, and decoctions of logwood, then your verdict will be for the defendant. If you reach the conclusion that it bears a substantial resemblance to both, but are unable to determine as to which it resembles most,'-'in other words, if it resembles both equally, or has a: sUbstantial resemblance to both,-then again your verdict must be for the defendant. Finally, should you reach the conclusion that it bears a substantial resemblance to neither, then again your verdict must be for the defendant, because the article in the latter case will becovered by the final clause as a manufactured article. The jury rendered a verdict for, the defendant.
UNITED STATES 11. BUTLER.
1.
(Diltrict (Jov,1't, B·. D. Miohigan. April 29,1889.)' ' " , , PERJOltV-PLEA 011' ,PRIOR ACQ'!H'M'AL... .'
.
A defendant, who had been acquitted upon an indictment for selling-liquors, without payment of the special tax required by law, was subsequently put upon trial for perjury. in: swearing, upon his preliminary examIDation before a commissioner that lIe did not so sell.. Held., that a plea of prior acquittal was bad, as the two indictments were not for the SRme transaction, nor sustained by the same evidence. ADJUDICATA.
S.
Held.,I'U'I'ther, ,that his acquittal for selling liquor was a conclusiveadjudication in his favor upon the subsequent trial for perjury, and that the government could not show that his oath was false. '
(Syllabu8 by the (Jourt.)
At Law. On plea to indictment. Defendant was indicted for selling malt liquors without payment of the special tax required by law, and also for perjury, in swearing before a United States commissioner, upon his preliminary examination, that he did not so sell. Upon his trial for selling liquor he was acquitted, and thereupon pleaded to the indictment for perjury autreJoia acquit. a. P. Black, U. S. Atty. D. A. Straker and Sylve8ter Larned, for defendant. BROWN, J. It certainly strikes one as an anomaly that, after anacquittal for a criminal offense, a party may be put upon trial for perjury, in swearing that he W9.Snot gUilty of that offense; but I do not think a plea of former acquittal is the proper way' to take advantage of it. To make such a plea effective it must appear that the same evidence will sustain both indictments, and that they relate to the same
UNITED STA.TES V. BUTLER.
transaction. Thus t if a person be acquitted of robbery, be. cannot be convicted of larceny {If the same property; nor t after conviction for arson t can a prisoner be tried for murder committed in burning the building, although it bas been held that a trial and conviction for an assault and battery is po bar to a subsequent indictment for manslaughter.·· Burns v. People, 1 Park. Crim. R. 182. But the offense of perjury is a totally distinct and separate thing from selling liquor, aud was committed at a different time, although it related to the same transaction, . and the evidence that will sustain one will only partly sustain the other. If defendant's contention were sound it would follow as a matter of course that if he had been convicted upon the first indictment for selling liquor, he could have pleaded a prior conviction to the indictment for perjury t a point I should be quite unwilling to concede. But I am clearly of the opinion that upon the trial of this case the defendant would be entitled to show that he had been acquitted of the offense concerning which he is charged to have committed perjury, and that such acquittal would be conclusive. Whenever the same fact has been put in issue between the same parties, the verdict of the jury upon such issue is a complete estoppf\l. This case contains all the elements of a plea of res judicata; the parties are the same; the point in issue, viz., whether he did in fact sell liquor, is the same, and the quantum of proof requisite in both cases is also the Had he sworn before the commissioner that he had paid his tax and had been acquitted by the jury upon the ground that he did not sell liquor, the issue would have' been difierent, and perhaps such difference might have been shown by parol, but in this case the two issues were identically the same. The case is pralltically covered by Coffey v. U. S., 116 U. S. 436, 6 Sup. Ct. Rep. 437. This was an information in rem against a distillery for a violation of the internal revenue laws. The claimant pleaded in defense a prior judgment of acquittal upon a criminal information against himSelf by the United States, alleging that such criminal informati.on contained the same charges alleged in the information in rem. The plea was held to be good, the court taking the ground that t "where an issue raised as to the existence of the act or fact denounced has been tried in a criminal proceeding instituted by the United States, and a judgment of acquittal has been rendered in favor of a particular person, that judgment is conclusive in favor of such person on the subsequent trial of a suit in rem by the United State8t where, as againflt him, the existence of the'same act or fact is the matter in issue as a cause for the forfeiture of the property." It was further held in that case that it made no differ· ence that in the criminal case the guil t of the defendant must be proved beyond a reasonable doubt, while upon the question of forfeiture the jury might find a verdict for the United States upon a simple preponderance of prodf. While I do not find the doctrine of res adjudicata discussed in criminal cases, 1 see no reason why the general rule regarding estoppels should not apply; especially where the quantum of proof reqUired in the· two prosecution8 is the same. , If this party could be convicted of perjury: in swearing ta a state offacts which a jury in another
1>00
FE:bERAL, REPORTER, vol. 38.
(lase against him has' found to be true; it would result that every criminal case in which the oefendant takes the stand and is acquitted could be practically retried upon an indictment for perjury. This never could have been the contemplation of congress in allowing a defendant to be sworn in his own behalf. ' I express no opinion as to whether, if he had been convicted, such conviction would act as an estoppel' against him in a prosecution for perjury) as the question is not involved in this case·
. UNITED STATES
'lJ.
CLARKE.
(Di8trice (Jourt, E. D. Mi88OUri, E. D. April 16, 1889.)
An indictment charged defendant with depositing in the post-office for mailing" a certain obscene, lewd, and lascivious pamphlet. of an indecent character," giving its title, and alleged that it .. is so obscene, lewd, and lascivi· ous" that it would be offensive if set forth in full. Held, t11at a de1l!urrer oIl the grounds that the pamphlet was not obscene, and that, if unfit for geperal lawfully be sent to certain persons. to whom the indictcirculation, it ment did not show that it was not mailed, could not be sustained", as, tbe pamphlet could, not be regarded as part of the record, and therefore those " ' questions could not be considered. S. SAME-MEANING OF WORDS-REV. ST. U. S. § 3893. ' , The words "obscene," "lewd," "lascivious." and' "indecent," as used'in Rev. St. U.S. 3893, prohibiting the deposit of publications so, described in the malls. h,ave the same meaning as given them at common law in prosecutions for' obscene l i b e l . ' , 8. SAME'-!ND1CTMENT-DEFENSES. As the statute contains no exceptions to the rule making obscene publications non-mailaple, the fact that a publication which would ordinarily be classed as within its meaning might lawfully be sent to certain persons, does not render it necessary to aver in the indictment that it was not sent'to such persons, it matter of defense to ,show that it was sent to such persons. 4. SAME-PROVINCE OF COURT AND JURY. .' The question whether or not a particular publication, is obscene, lewd, or lasciv'ious is for the jury, under instructions from'the court as to themea-n' ing of the words.
OFFENSES AGAIN!!'!' POSTAL LAWS-OBSOENE MATTER-INDICTMENT.
,
At Law. On demurrer to indictment. Frank D. Clarke was indicted ;under Rev.St.U. S. § 3893,asamended by act Cong.'Sept. 26, 1888, (25 U. S. St. at Large, 496.) 'He"demWs to the indictment. Thomas P. Ba.shaw, Dist. Atty. Che8ter H. KrwTlt, for defendant. ,i THAYER, J. The indictmenfin this case is in'thEr usual form. , One ofthe counts, which may be taken as a sanlple of all, allegesdhatthe defendant knowingly dppositedfor mailing ill'the ,post-office, at: 'the city bf-St. LOllis, a certain obscene, lewd, and ]asciv,iou's 'iYJ.m:phlet' oran :in" decent character, entitled," DriC]urke'sTl'entise'biI