The opinion of the court was delivered by: John E. Miller, Chief Judge.
With the approval of the court and the consent of the
Government, the defendants waived a jury trial in this case and
it was tried to the court on November 2, 1960.
At the conclusion of the testimony offered by the Government,
the defendants moved under Rule 29, Federal Rules of Criminal
Procedure, 18 U.S.C.A., for the entry of judgment of acquittal.
The motion was not granted, and the defendants proceeded to
introduce testimony in their behalf, and at the close of all the
evidence, the defendants renewed their motion. The court reserved
decision on the motion, submitted the case, and directed that the
parties file briefs in support of their respective contentions,
which briefs have been received and considered, along with all of
the testimony and exhibits thereto.
No request was made that the court "find the facts specially"
as is required under Rule 23(c) of the Federal Rules of Criminal
Procedure if such request is made, but the court believes that
the facts should be stated specifically.
The indictment contains three counts. Count 1 charges that on
or about January 12, 1959, the defendant, H.L. Blake Company,
Inc., by H.L. Blake, President, and Mrs. Pearl Blake, Secretary,
"knowingly deposited in the United States Mail at Hot Springs,
Arkansas, for mailing certain articles and things, to-wit: an
envelope bearing first class mailing stamp and return address of
H.L. Blake Corporation, Box 393, Route 4, Hot Springs, Arkansas,
addressed to Phillip Humphrey, General Delivery, Fox River Grove,
Illinois, and containing two Big Chief prophylactics, together
with printed literature describing the uses, benefits, and
advantages of the Big Chief prophylactics, such things and
articles being designed, adapted and intended for preventing
conception, in violation of 18 U.S.C. § 1461."
Count 2 is identical with Count 1 except that it is therein
alleged that the envelope was addressed to Clarence N. Bearden
Whse. Job., 4020 Armour Street, Fort Smith, Arkansas.
Count 3 is identical with Count 1 except that it is charged
therein that the envelope was addressed to H.V. Staley Whse.
Job., Route No. 3, Box 358, Salem, Virginia.
The indictment is based upon 18 U.S.C.A. § 1461, the
applicable parts of which read as follows:
"Every article or thing designed, adapted, or
intended for preventing conception or producing
abortion, or for any indecent or immoral use; and
"Every written or printed card, letter, circular,
book, pamphlet, advertisement, or notice of any kind
giving information, directly or indirectly, where, or
how, or from whom, or by what means any of such
mentioned matters, articles, or things may be
obtained or made, or where or by whom any act or
operation of any kind for the procuring or producing
of abortion will be done or performed, or how or by
what means conception may be prevented or abortion
produced, whether sealed or unsealed;
"Is declared to be nonmailable matter and shall not
be conveyed in the mails or delivered from any post
office or by any letter carrier.
"Whoever knowingly uses the mails for the mailing,
carriage in the mails, or delivery of anything
declared by this section to be nonmailable, or
knowingly causes to be delivered by mail according to
the direction thereon, or at the place at which it is
directed to be delivered by the person to whom it is
addressed, or knowingly takes any such thing from the
mails for the purpose of circulating or disposing
thereof, or of aiding in the circulation or
disposition thereof, shall be fined not more than
$5,000 or imprisoned not more than five years, or
both, for the first such offense, and shall be fined
not more than $10,000 or imprisoned not more than ten
years, or both, for each such offense thereafter."
There is no substantial dispute concerning the facts.
The defendant, H.L. Blake Company, Inc., is an Arkansas
corporation. The defendant, H.L. Blake, is President and General
Manager, and actively directs the business of the corporation.
The defendant, Mrs. Pearl Blake, is the wife of H.L. Blake, and
is the Secretary of the corporation, and actively assists her
husband in the conduct of the business. The corporation is
engaged in business as a wholesale broker of rubber goods,
including prophylactics sold under the trade mark "Big Chief,"
which was registered in the United States Patent Office on
January 1, 1957 (defendant's exhibit 2).
The Inspector took the envelope to the defendant, H.L. Blake,
on January 21, 1959, and asked permission to open the envelope in
Mr. Blake's presence, which permission was granted. In the
envelope was one package which contained two rubber "Big Chief"
prophylactics and two sheets of printed material. The package
containing the prophylactics had printed thereon "Sold for the
prevention of disease only." The printed material stated
"Prophylactics rubber products for the prevention of disease,"
and contained other information hereinafter set forth.
As to the charge contained in Count 1, the court finds that on
or about January 12, 1959, the defendants deposited in the mail
at Hot Springs, Arkansas, an envelope addressed to Phillip
Humphrey Wholesale Jobber, General Delivery, Fox River Grove,
Illinois, in which was enclosed two separate sheets of
information, on one of which appeared the following:
"Big Chief latex now available to you. For jobbers
only — a complete line of latex for vendors and
"Some exclusive territory available to a few
selected jobbers who want to do good first — make
money second, and to hold locations.
"Prophylactic rubber products for the prevention ...