O'Neal v. United States
This text of 56 F.2d 51 (O'Neal v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
(after stating the facts as above).
The errors relied upon are: (1) Overruling the demurrer to count 1 of the indictment; (2) overruling appellants’ motion in arrest of judgment on counts 2, 3, and 4; (3) lack of evidence to support the finding as to each count.
It is contended by appellants that count 1 is defective because Government’s Exhibit No. 1,3 upon which that count is based, is not obscene.
[52]*52Without discussion, it is sufficient to say that the exhibit is obscene as defined by the statute and as interpreted by the following decisions: Swearingen v. United States, 161 U. S. 446, 16 S. Ct. 562, 40 L. Ed. 765; Dunlop v. United States, 165 U. S. 486, 17 S. Ct. 375, 41 L. Ed. 799; Lau Fook Kau v. United States (C. C. A.) 34 F.(2d) 86; Lynch v. United States (C. C. A.) 285 F. 162; De Gignac v. United States (C. C. A.) 113 F. 197. The demurrer to the first count was properly overruled.
The other exhibits upon which counts 2, 3, and 4 are based are admittedly obscene. Indeed, they are so much so that they are not set out in the record.
Appellants have not complied with rule 22, § § 5 and 7, of this court in setting forth clearly the errors relied upon; but, aside from the ruling on the demurrer to the first count, the errors assigned relate to the admission of exhibits not referred to in the indictment, failure to produce and introduce in evidence envelopes in which it is charged the obscene matter was sent, lack of proof of mailing of such articles or that they were sent through the mails, indefiniteness as to what exhibits certain counts of the indictment were based upon, and insufficiency of the evidence to support the finding on any count.
A perusal of the entire record convinces us that the character of the evidence introduced does not warrant or merit an extended discussion of the questions raised by appellants’ objections. The fact that the government failed to introduce in evidence the envelopes referred to did not constitute a failure of proof as to any material allegation. There was some direct testimony upon almost every material allegation; and, if there be any material allegation not thus supported, it is nevertheless abundantly supported by circumstantial evidence. Levinson v. United States (C. C. A.) 5 F.(2d) 567; Krotkiewicz v. United States (C. C. A.) 19 F.(2d) 421. All evidence received was properly admitted under one or more of the counts, one of which, it must be borne in mind, was a charge of conspiracy. The business seemed to be carried on in the name of Pierre Balzac at 4615 Vincennes avenue, Chicago, but that appellants were the dominant spirits of the concern cannot be doubted after reading the evidence. We find no error in the record.
Judgment affirmed.
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56 F.2d 51, 1932 U.S. App. LEXIS 2699, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oneal-v-united-states-ca7-1932.