OBSCENITY. In Criminal Law. • Such in decency as is calculated to promote the vio lation of the law and the general corruption of morals. It is that form of indecency which is calculated to promote the general corruption of morals. U. S. v. Males, 51 Fed. 41. In all cases an indictment for obscenity must aver exposure and offence to the conl munity generally ; mere private indecency is not indictable at common law; 2 Whart. Cr.
§ 1431.
The test is : "Whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall ;" L. R. 3 Q. B. 371; it is no defence that it was done with the idea of accomplishing a good purpose ; id.; L. R. 7 C. P. 261; or that the matter is an accurate report of a judi cial proceeding; id.
The exhibition of an obscene picture is an indictable offence at common law, although not charged to have been exhibited in public, if it be averred that the picture was exhibit ed to sundry persons for money ; Arch. Cr. Pr. 1034; Com. v. Sharplcss, 2 S. & R. (Pa.) 91, 7 Am. Dec. 632. The stat. 20 and 21 Viet. c. 83, gives summary powers for the searching of houses in which obscene books, etc., are suspected to be kept, and for the seizure and destruction of such books. By various acts of congress, the importation and circulation, through the mails or in inter state commerce, of obscene literature or ar ticles of any kind is rendered punishable with fine or imprisonment; R. S. § 2491, 3893, 5389; Act of Aug. 5, 1909 ; Act of March 4, 1909. See Corn. v. Landis, 8 Phila. (Pa.) 453; Corn. v. Dejardin, 126 Mass. 46, 30 Am. Rep. 652; Fuller v. People, 92 Ill. 182 ; U. S. v. Males, 51 Fed. 41. R. S. § 3893, as amend ed by act of congress (19 Stat. L. p. 90), pro hibiting the mailing of obscene papers, is not in contravention of the first amendment to the constitution providing that the free dom of the press shall not be abridged; Re Jackson, 96 U. S. 727, 24 L. Ed. 877 ; Har
man v. U. S., 50 Fed. 921. An obscene book or paper within the act relating to nonmail able matter means one which contains im modest and indecent matter, the reading whereof would have a tendency to deprave and corrupt the minds of those in whdse hands the publication might fall, and whose minds are open to such immoral influences; U. S. v. Clarke, 38 Fed. 732. Mailing a pri vate sealed letter containing obscene matter is an offence within the statute; Andrews v. U. S., 162 U. S. 420, 16 Sup. Ct. 798, 40 L. Ed. 1023; U. S. v. Gaylord, 50 Fed. 410.
It is not essential to the commission of the offence that the defendant personally mailed the objectionable matter ; Burton v. U. S., 142 Fed. 57, 73 C. C. A. 243; nor that the en tire contents of a newspdper or parcel de posited in the mail be objectionable; Demolli v U. S., 144 Fed. 363, 75 C. C. A. 365, 6 L. R. A. (N. S.) 424, 7 Ann. Cas. 121.
Where the necessary 'inference from the language used in a letter was obscene, it was held immaterial that the words used were not themselves obscene ; U. S. v. Moore, 129 Fed. 159.
The character of a publication as to wheth er obscene or otherwise is not to be deter mined by the motives of the author or send er in making or sending it ; U. S. v. Clarke, 38 Fed. 500. An indictment for selling an obscene book need not set out the obscene matter nor even describe the same in gener al terms, if it identifies the book and states that the contents are too indecent to be placed upon the record; People v. Kaufman. 14 App. Div. 305, 43 N. Y. Supp. 1046.
The fact that a woman, in whose presence obscene language is used, is herself in the habit of using such language, can in no case constitute a justification, but may mitigate the offence; Golson v. State, 86 Ala. 601, 5 South. 799.
See INDECENT EXPOSURE ; LETTER.