In passing upon this case we shall notice only such errors as were pressed upon our attention in the argument or briefs or counsel.
1. The first assignment is to the alleged error of the court 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, for the purpose of enabling the defendant to demur to the indictment. Defendant's petition for this order states as the reason for it that, if the advertisements complained of were not filed, his counsel 'must investigate and critically examine' over 3,000 advertisements and notices, and that he would 'necessarily be confused and embarrassed,' and unable 'to make suitable preparations to sustain his defense.' It is nowhere stated that he desired it for the purpose of demurring to the indictment, and if it had been furnished it would not have been the subject of demurrer, since it is no part of the record. Com. v. Davis, 11 Pick. 432. If the indictment be not demurrable upon its face, it would not become so by the addition of a bill of particulars.
Beyond this, however, the application is one addressed to the discretion of the court, and its action thereon is not subject to review. Rosen v. U.S., 161 U.S. 29, 35, 16 Sup. Ct. 434, 480; Com. v. Giles, 1 Gray, 466; Com. v. Wood, 4 Gray, 11; State v. Bacon, 41 Vt. 526. While such applications are ordinarily, and should be, granted, wherever the accused is liable to be surprised by evidence for which he is unprepared, it is difficult to see how the defendant in this case was prejudiced by its refusal. The alleged obscene matter was contained in a published newspaper to which his own name was attached as proprietor, and of which he had in fact been the proprietor for several years, the days and editions of which were set forth in the several counts. He was duly informed upon the trial of what particular advertisements the government complained, and requested the court to charge the jury that they were not obscene, within the meaning of the law. He thus gained every advantage that he could possibly have had by the production of the advertisements prior to the trial.
2. The second and five other assignments of error are taken to the admission of the following advertisements of proprietorship, appearing in the several editions set forth in the indictment, upon the ground that there was no proof that the newspapers, from which they were taken, were copies of the Chicago Dispatch, and that they did not tend to show who was the publisher:
It is difficult to see how the identity of the paper, called the Chicago Dispatch, 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. In that particular the paper proved itself.
While the addition of the words 'by Joseph R. Dunlop,' might not have been, standing alone, sufficient evidence of his being the proprietor of the paper, and the cause of its being mailed, yet, in view of the fact that the name of the publisher usually follows the name of the paper in that connection, it certainly had a tendency in that direction, and was, therefore, admissible, particularly when it was shown by other testimony that defendant had stated that he was the proprietor and publisher of this paper; that a paper of this name had been for a long time printed and circulated by him; that it had for a long time and in large numbers passed through the post office; that he had negotiated for the renting of a building for the purpose of publishing a paper called the Dispatch; that he had conversations with witnesses in regard to the publication of a paper of that name; that, as proprietor, he had caused papers, similar to these, to be sent through the post office, and that the accounts for postage had been rendered to him.
3. The eighth assignment was taken to an alleged error in permitting the witness McAfee to testify that it was the duty of a certain messenger of the post-office inspector, whose office was in the post-office building a St. Louis, Mo., to take the mail from the post office, and distribute it in the private boxes of persons who had desk room in the inspector's office.