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UNITED STATES v. H.L. BLAKE COMPANY

December 30, 1960

UNITED STATES OF AMERICA, PLAINTIFF,
v.
H.L. BLAKE COMPANY, INC., H.L. BLAKE, PRESIDENT, MRS. PEARL BLAKE, SECRETARY, DEFENDANTS.



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 Postmaster of Hot Springs, Arkansas, intercepted a large number of envelopes mailed at the Albert Pike substation in Hot Springs, being first-class mail and bearing the return address of the defendant corporation. The envelopes were addressed to various persons throughout the United States. The Postmaster withheld dispatching the envelopes until he contacted the Solicitor for the Post Office Department in Washington, D.C. He was advised by the General Counsel for the Post Office Department to dispatch all the envelopes except one which should be retained and delivered to Post Office Inspector Howell. This was done. The envelope that was delivered to the Post Office Inspector was addressed to H.P. Downs, Wholesale Jobbers, 1200 Madeline Place, Fort Worth, Texas.

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
  counter sales.
    "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 ...

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