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Opinion of the Court.

Mr. J. A. Tawney for appellants. Mr. Tawney and Mr. II. M. Lamberton filed a brief on behalf of the Winona and St. Peter Land Company, appellant.

Mr. Solicitor General for appellees.

MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.

The differences between this case and that referred to in the foregoing statement are these : Anterior to any claim of right by the railroad company, by virtue either of filing its map of definite location or of surveying and staking upon the ground its line, a preëmption filing was placed upon the land which was never cancelled. There remained, therefore, on the records until after the certification to the State a claim of a right to preëmpt. The party making this claim continued in possession by himself or tenant until not only the construction of the railroad, but until after the conveyance by the railroad company to the land company, and so remained in possession until a suit of ejectment was brought by the land company in 1877.

On the strength of these facts the Court of Appeals was of opinion that the land company could not be considered one purchasing in good faith from the railroad company; that it took its conveyance with notice, from possession, of all the rights and claims of the party so in possession, and therefore that it did not bring itself within the protecting clauses of the act of March 3, 1887, c. 376, 24 Stat. 556, and there was nothing to stay the right of the government to have this certification so erroneously issued cancelled. With that conclusion we concur. That the land was erroneously certified is, under the prior decisions of this court, not open to question; and the acts of 1887 and 1896 have, as indicated in the opinion in the prior case, the purpose of protecting only that party whose purchase from the railroad company must be considered one in good faith. It is essential to the protection of these statutes that the party purchasing from


the railroad company has no notice by any fact subsequent to and independent of the certitication or patent of any defect in title. Such a purchaser cannot claim to be one in good faith if he has notice of facts outside the records of the land department disclosing a prior right. The protection goes only to matters anterior to the certification and patent. The statute was not intended to cut off the rights of parties continuing after the certification, and of which at the time of his purchase the purchaser had notice. Only the purely technical claims of the government were waived.

Here the claimant Marshall was in possession ; had been in possession for twenty years; the land was not wild and vacant land. His possession was under a recorded claim of title, and under such a claim as forbade the issue of a patent. In other words, the land was erroneously certified. There was, and continued to be, an individual claimant for the land. There was no cancellation on the records of the land department of his claim. He continued in possession, and was in possession not only when the certification was made but when the land company purchased. Its purchase, therefore, was not one made in good faith, and there is nothing disclosed to stay the mandate of the statute for the adjustment of the land grant, and a suit to set aside the certificate erroneously issued. The decree of the Court of Appeals is






No. 472. Argued December 21, 1596. -- Decided February 15, 1897.

There was no error in overruling the motion of the defendant, made prior

to the trial, to require the District Attorney to file the printed matter

alleged in the indictment to be obscene, lewd, lascivious and indecent. There was no error in the admission of the advertisements of proprietorship

of the Dispatch as it is difficult to see how the identity of the paper,


which the indictment averred that the defendant deposited in the post office for mailing, could have been more conclusively proved than by the production of a newspaper called the Dispatch, and purporting to be the

official paper of the city of Chicago. There was no error in permitting government officers in the Post Office

Department to testify as to the course of business in the respective offices with which they were connected, with a view of proving the customs of the post office, the course of business therein, and the duties of the

employés connected with it. Where a question is made whether a certain paper or other document has

reached the hand of the person for whom it is intended, proof of a usage to deliver such papers at the house, or of the duty of a certain messenger to deliver such papers, creates a presumption that the paper in question

was actually so delivered. There was no error in permitting the government to prove that during the

three years preceding the trial, and also during the period covered by the dates of the papers, admitted in evidence, namely, July 6 to October 19, 1895, a newspaper, purporting to be the Chicago Dispatch, was regularly on each day, except Sunday, received in great quantities at the

Chicago post office for mailing and delivery. Whether the matter is too obscene to be set forth in the record is a matter

primarily to be considered by the District Attorney in preparing the indictment; and, in any event, it is within the discretion of the court to say whether it is fit to be spread upon the records or not; and error will

not lie to the action of the court in this particular. There is no merit in the assignment of error taken to the action of the

court, in refusing to direct a verdict of not guilty at the close of the

testimony. In his argument to the jury the District Attorney said: “I do not believe

that there are twelve men that could be gathered by the venire of this court within the confines of the State of Illinois, except where they were bought and perjured in advance, whose verdict I would not be willing to take upon the question of the indecency, lewdness, lasciviousness, licentiousness and wrong of these publications.” To this language counsel for the defendant excepted. The court held that it was improper, and the District Attorney immediately withdrew it. Held, that the action of the court was commendable in this particular, and that this ruling, and the immediate withdrawal of the remark by the District Attorney, condoned his error in making it, if his remark could be deemed a prejudicial

error. There was no error in the remarks of the District Attorney as to massage

treatment. There was no error in instructing the jury that: “ It is your duty to come

to a conclusion upon all those facts, and the effect of all those facts, the same as you would conscientiously come to a conclusion upon any other set of facts that would come before you in life.” " There is no techpical rule; there is no limitation in courts of justice, that prevents you from Statement of the Case.

applying to them (the facts and circumstances in evidence) just the same rules of good, common sense, subject always, of course, to a conscientious exercise of that common sense, that you would apply to any other subject that came under your consideration and that demanded your

judgment." There was no error in the following instructions as to obscene publications :

• Now, what is (are) obscene, lascivious, lewd or indecent publications is largely a question of your own conscience and your own opinion; but it must come — before it can be said of such literature or publication it must come up to this point: that it must be calculated with the ordinary reader to deprave him, deprave his morals, or lead to impure purposes. . . It is your duty to ascertain in the first place if they are calculated to deprave the morals; if they are calculated to lower that standard which we regard as essential to civilization; if they are calculated to excite those feelings which, in their proper field, are all right, but which, transcending the limits of that proper field, play most of the

mischief in the world." In view of the previous instructions of the court, there was no error in re

fusing to instruct the jury that the presumption of innocence was stronger than the presumption that the government employés who delivered the newspapers to Mr. Montgomery in the Chicago post office building obtained such papers from the mails; or that the presumption that the person who deposited them in the box in the St. Louis post office building from which box the witness McAfee took the papers obtained them from the mails.

This was a writ of error to review the conviction of the plaintiff in error for unlawfully depositing and causing to be deposited, upon the days set out in the various counts, in the post office at Chicago, for mailing and delivery, a newspaper called the Chicago Dispatch, containing obscene, lewd, lascivious and indecent matter. There were thirty-two counts in the indictment. The District Attorney, under order of the court, elected to proceed upon the first, sixth, twelfth, sixteenth, twenty-sixth and thirty-second counts. The other counts were quashed, and no evidence was offered to sustain the first count.

The sixth count was as follows :

“And the grand jurors aforesaid under their oath aforesaid do further present that the said Joseph R. Dunlop, on the sixth day of July, in the year aforesaid, at Chicago aforesaid, in the division and district aforesaid, unlawfully did knowingly deposit and cause to be deposited in the

Statement of the Case.

post office of the said United States there, for mailing and delivery, a large number of copies, to wit, one hundred copies of a certain paper, print and publication entitled The Chicago Dispatch, one of which said copies was then and there directed to Mr. Montgomery, at Chicago aforesaid ; another to R. M. Williams, box 801, at St. Louis, Missouri, and the rest to divers persons, respectively, to the said grand jurors unknown, and each of which last-mentioned copies was then and there a copy of the five-o'clock edition of the day in this count aforesaid and number 840 of the said paper, print and publication, and contained (amongst other things) on the eleventh page thereof and under the headings of Personal and Baths, certain obscene, lewd, lascivious and indecent matters in print, of too great length and of too indecent character to be here set forth in full, against the peace and dignity of the said United States and contrary to the form of the statute of the same in such case made and provided.”

The other counts differed from this only in the dates of the newspapers alleged to have been mailed, and the days upon which they were deposited in the post office.

The testimony introduced by the government tended to show that there was published in the city of Chicago, during the year 1895, and the three years immediately prior thereto, a daily and weekly newspaper entitled The Chicago Dispatch; that the plaintiff in error, Joseph R. Dunlop, was the publisher of said newspaper during those years; that copies of the Chicago Dispatch in large numbers were deposited in the Chicago post office for mailing and delivery during said years, daily except Sunday; that the copies of the Chicago Dispatch described in the indictment as directed to Mr. Montgomery at Chicago, and the copies of the Chicago Dispatch described in the indictment as directed to R. M. Williams, box 801, at St. Louis, Missouri, were deposited for mailing and delivery at the post office in Chicago on the dates of said several copies; that all the copies of said Chicago Dispatch, so directed to said R. M. Williams and Mr. Montgomery, contained therein, under the headings of Personal and Baths, certain advertisements that were obscene,

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