(dissenting). Demolli was jointly indicted with Howells and Simpson for depositing and causing to be deposited in the mails copies of a newspaper containing obscene, lewd, and lascivious articles. The newspaper ivas a four-page weekly published at Trinidad, Colo. The names of Howells and Simpson appeared therein as being respectively the president and manager of the company owning it, but, being engaged in other affairs, they paid little attention to the performance of their official duties. Howells and Simpson were acquitted because it was shown that they did not know of the insertion of the objectionable articles. Demolli was convicted.
While Demolli wrote the articles and left them in the office of the newspaper for publication, it is conceded, as indeed it must be, that there was no evidence that he participated directly or indirectly in the mailing of papers containing them or directed or requested that they be mailed. He was neither the proprietor of the newspaper nor an employe of the proprietor in that business. He -was mereR a voluntary correspondent who contributed articles to its columns without compensation. He had no power to require any publication therein or to direct anything whatever to be done in or about the conduct of the business. As it is conceded that Demolli had “no authority over its publication or the mode of its distribution,” his prior connection with the newspaper is without legal significance, except as proof of knowledge of what was customarily done. With the admission of knowledge that the mails were used in the usual distribution of the newspapers, no line of distinction can be judicially drawn between him who organized and once managed the enterprise but did so no longer, and one who, having equal knowledge, had never been connected with the management at all. And this is true, although much reliance seems to be placed upon Demolli’s connection with the *368mailing of prior issues of the newspaper. Obviously that fact has no relevancy other than as proof of knowledge, since it is not claimed that those papers contained anything objectionable. All is said, when it is said he had knowledge of tire course of business.
It is not contended that Demolli, in contributing the objectionable articles, purposely took advantage of the absence or ignorance of Howells and Simpson, or that he acted in a surreptitious manner. Aside from the character of the articles, there appeared nothing unusual or exceptional in the transaction in question. The articles seem to have been accepted and published with the assent of those in the actual and active charge of the making up, printing, publishing, and mailing of the newspapers. Pagiani had charge of the translations and editorship, Smith of the mechanical work and mails, and Bartlett of the typesetting. None of these men were under the control or subject to the direction of Demolli, who, as already observed, merely wrote the articles and left them in the office for publication. In that sense he directed or caused their publication.
My associates uphold the conviction and sentence of Demolli upon the theory that, although he was not responsible for the mailing of the newspapers as such, nevertheless he was the author and contributor of the objectionable articles, and knew that in the customary distribution of the newspapers they would go through the mails. It seems to me that this conclusion cannot be sustained by either reason or precedent. However reprehensible such conduct may be, the writing of obscene, lewd, and lascivious articles is not an offense under the act of Congress, nor is the publication of such articles in a newspaper. The specific, particular offense denounced b}' the statute is within very narrow limits — it is the mailing of obscene, lewd, and lascivious articles, depositing them in the mails, or causing them to be so deposited.
Doubtless, when Demolli contributed the objectionable articles, he had not, in point of actual fact, the remotest thought of the use of the mails in connection therewith. It is true, however, that had he reflected it would have occurred to him, as it would have come to the mind of any one familiar with the methods emplo37ed in such business. It is therefore said that the crime is complete, because he is held to have -intended and to be criminally responsible for what are called the natural and probable consequences of his act. In other words, he is held to have contemplated the acceptance of his articles, the putting of them into type without change or emendation, the issue of the newspapers containing them, and finally the deposit of the newspapers in the mails. And all of these acts he is also held criminally responsible for, although they were done independently of him and by persons not in his service or under his control, and who were in- no, sense his agents or employes. Those in charge of the conduct and operation of the newspaper business were neither confederates of Demolli acting concurrently with him in a common design, nor were they engaged in his service. The actual mailing of the newspapers was the result of intervening, independent,, and responsible human agencies, acting neither for Demolli nor by his *369direction. And these considerations, it seems to me, should compel his acquittal of the particular offenses charged in the indictment.
To reach® the conclusion announced there is a blending by the court of an evidential presumption of intent with the doctrine of proximate cause and effect drawn from the law of civil damages, and it is difficult to discern how far each is separately relied on to make up the essential elements of the crime charged. To warrant conviction there must have been a combination of both intent and the forbidden act. If either is lacking, no crime was committed. There is an evidential presumption that one intends the natural and probable consequences of an act intentionally done (Agnew v. United States, 165 U. S. 36, 50, 17 Sup. Ct. 235, 41 L. Ed. 624; 1 Bishop Cr. Proc. §§ 1099-41101); but it cannot reasonably be contended that this presumption of intent in turn establishes the substantive act itself. So, then, we turn to the various authorities cited, most of them cases of negligence, which announce a rule in the law of civil damages. In such cases the sufficient connection between actionable cause and effect is the probable. In Union Pacific v. Callaghan, the first one cited, a defendant is held civilly responsible in damages for “those results that a reasonably prudent man would have anticipated,” and this is but a variant expression of the doctrine of all such cases. But how would it do to say, upon the authorhy of such decisions, that every one is criminally responsible for all those results of his acts that a reasonably prudent man would have anticipated ? While negligence is sometimes a crime, as a general thing criminal responsibility and civil liability in damages for negligent acts or omissions proceed upon different considerations and involve the application of different rules. With the unqualified introduction of the doctrine of proximate cause and proximate results as applied in cases of negligence into the body of the criminal law, the latter, it seems to me, will then have burst its ancient barriers and have covered new and unfamiliar fields.
It is true that, if one intentionally and secretly inserts a lascivious writing in an unsealed letter written by another, which he knows is intended to be transmitted through the mail, and which is afterwards sealed and put in the mail for transmission without the presence of the objectionable writing being discovered, he is as guilty under the statute as if the letter were his, and, with the objectionable writing, were deposited in the mail by another acting under his direction. But this is so, not by reason of the doctrine of proximate cause, hut because he who placed the objectionable writing in the unsealed envelope constituted the other his agent for the express purpose of mailing it, and he thereby caused the mailing just as clearly and effectually as if he had intrusted the letter to a messenger boy to be taken to the post office. But what Demolli did lacks the proximity in both deed and purpose to the specific offenses denounced by the statute and charged in the indictment necessary to justify his conviction. It is too far removed for criminal responsibility. If he can be held, why not also the typesetter, the proof reader, the pressman, and all others who, being cognizant of the objectionable articles, were engaged upon *370the line of activities in the business of the newspaper ending with the deposit of the papers in the post office?
It is a matter of common knowledge that in these days the post office establishment of the United States is emploj’-ed to a greater or less degree in the distribution of almost every newspaper and magazine. So, if the doctrine of the foregoing' opinion prevails, every one who merely communicates an article or inserts an advertisement or notice in such a newspaper or magazine can be held to have used the mails in violation of sections 3893, 3894, or 5480 of the Revised Statutes [U. S. Comp. St. 1901, pp. 2658, 2659, 2696], if the character of the article contributed or the advertisement or notice inserted brings it within the comprehensive enumeration of nonmailable matter contained in those sections; and in such a case it will be held that the intent of the defendant to use the mails may be presumed from his knovdedge that the publishers themselves employ the mails in the distribution of their publication, and further, that he actually caused the nonmailable matter to be deposited in the mails, because the fact of such deposit ought to have been foreseen in the light of the attendant circumstances.
The indictment in this case charges that Demolli did knowdngly deposit, and cause to be deposited, in the post office, newspapers containing objectionable articles. It is admitted that he had no authority over the publication or mode of distribution of the newspapers, and it is disclaimed that there was “any evidence that he was responsible for the mailing of the newspapers, as such,” but it is said he is criminally responsible for the mailing of the objectionable articles contained in the newspapers. In each count of the indictment the charge is confined by explicit terms to the mailing of the newspapers. Of these charges Demolli is in effect held not guilty; but his conviction is upheld because of his authorship of two articles in the newspapers, which it is said he did not cause to be mailed. I do not think that the existing legislation of Congress goes so far. The lines of criminal statutes are not elastic or adjustable, and the extension or stretching of them by judicial authority, even to cover conduct grossly offensive to public morals and decency, as was that of Demolli, is productive of far more evil than could result from the escape of the individual offender.
A penal Code of China authorized the judge, if he could find no criminal law precisely applicable, to be guided by the spirit of the provisions enacted for those cases most resembling that under consideration (Staunton’s Penal Code of China, § 44, p. 43), but in this country, as was observed in Todd v. United States, 158 U. S. 278, 283, 15 Sup. Ct. 889, 890, 39 L. Ed. 982:
“It is axiomatic that statutes creating and defining crimes cannot be extended by intendment, and that no act, however wrongful,' can he punished under such a statute unless clearly -within, its terms. There can he no constructive offenses, and before a man can be punished his case must be plainly and unmistakably within the statute.”