The indictment contains several counts, each charging the defendant with having sent, by mail, a private sealed letter of an indecent character, in violation of the act of September 26, 1888, (1 Supp. Rev. St. [2d Ed.] 621.) In this case, as in the case of United Stal.es v. Warner, I hold that the offense is not indictable by reason of the indecent matter contained in the letter. The United States attorney claims, however, that by an allegation to the effect that upon the envelope of each letter there was written an epithet, to wit, the words “The Notorious,” calculated and obviously intended to reflect injuriously upon the character of the person addressed, the case is brought within the first section of said statute, which reads as follows:
“That all matter otherwise mailable by law, upon the envelope or outside cover or wrapper of which, or any postal card upon which, any delineations, epithets, terms, or language of an indecent, lewd, lascivious, obscene, libelous, scurrilous, defamatory or threatening character, or calculated by the terms or manner or style of display and obviously intended to reflect injuriously upon the character or conduct of another may be written -or printed, or otherwise impressed or apparent, are hereby declared non-mailable matter; *> * * and any person who shall knowingly deposit, or cause to be deposited,' for mailing or delivery, anything declared by this section to be non-mailable matter, * * * shall, for each and every offense, upon conviction thereof, be lined not more than live thousand dollars, or imprisoned at hard labor not more than five years or both, at the discretion of the court.”
The superscription upon the envelope, as set forth in the indictment, after the name of the person, is as follows: “Room 32, Pease *358House, Front St., City, Tlie Notorious.” The epithet, although presumably offensive to the person addressed, is not per se indecent, scurrilous, or defamatory, nor of a threatening character, and the use of it, therefore, is not prohibited by the law, unless- it is both calculated to reflect injuriously upon the character or conduct of a-person, and obviously intended to- have such injurious effect. The present inquiry may be limited to the simple question whether or not the intention to reflect injuriously upotf the character or conduct of any person is obvious. From the style of the superscription it is not obvious that the words “The Notorious” were intended to characterize the person addressed, or any person. On the contrary, the Pease House would appear to have been intended to be designated as “The Notorious.” But, assuming that the epithet applies to the person addressed, the words themselves do not necessarily reflect injuriously. Applied to a person without notoriety, they are meaningless. A man may be a notorious wit. These who possess and exercise superior powers as orators, singers, or actors gain celebrity, and the holders of exalted positions are referred to as noted persons. Applied to persons of such character, the epithet would be considered by those acquainted with their reputations as being in bad taste, but not as implying any bad imputation.
The demurrer will be sustained, and the indictment quashed.