a criminal offense * * *.' Id. 332 U.S. at page 7, 67 S. Ct. at page 1542.'
As to the proper standard for judging obscenity, see Roth v. United States, supra, 354 U.S. at page 489, 77 S. Ct. at page 1311. An approved test is 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' As to the latter, sex and obscenity are not synonymous and the portrayal of sex per se is not sufficient to deny constitutional protection. Roth v. United States, supra, 354 U.S. at page 487, 77 S. Ct. at page 1310; United States v. Dennett, 2 Cir., 1930, 39 F.2d 564, 76 A.L.R. 1092; Consumers Union v. Walker, 1944, 79 U.S.App.D.C. 229, 145 F.2d 33, at page 35. Material is obscene when it 'deals with sex in a manner appealing to prurient interest.' Roth v. United States, supra, 354 U.S. at page 487, 77 S. Ct. at page 1310; and see Butler v. Michigan, 1957, 352 U.S. 380, 77 S. Ct. 524, 1 L. Ed. 2d 412.
In Roth the trial court charged, 'The words 'obscene, lewd and lascivious' as used in the law, signify that form of immorality which has relation to sexual impurity and has a tendency to excite lustful thoughts.' In Alberts (Alberts v. California, heard and simultaneously disposed of in Roth v. United States) the test was 'whether the material has 'a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desires." See Roth v. United States, supra, 354 U.S. at page 486, 77 S. Ct. at page 1310. In holding that both courts used the proper definition of obscenity, Mr. Justice Brennan, speaking for a majority of the court, stated, 'We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I., Model Penal Code, § 207.10(2) (Tent.Draft No. 6, 1957), viz: '* * * A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. * * *"
See 354 U.S. at page 487, note 20, 77 S. Ct. at page 1310. Further, 'in light of our holding that obscenity is not protected speech, * * * 'it is unnecessary * * * to consider the issues behind the phrase 'clear and present danger." Roth v. United States, supra, 354 U.S. at page 486, 77 S. Ct. at page 1310; see Schenck v. United States, 1919, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470; Dennis v. United States, 1951, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137.
We are here concerned with a more or less 'private' mailing, (op. cit. supra, 106 U. of Pa.L.Rev. at 237) in which the writer venting his spleen in an attempt to harm publicly declares (see United States v. Pratt, D.C.E.D.Mich., 1875, 27 Fed.Cas.No. 16,082, p. 611, at pp. 612-613)
that they had engaged in adulterous relations, speaks of poignant memories, of indecent exposures, of unnatural sex gratifications. While defendant's objective may have been to embarrass, intimidate, and to prevent prosecution, the main thrust of each message, although jejune in content, was to prurient interest, indicated a shameful interest in sex and went substantially beyond customary limits of candor in description.
At all events they presented a jury question under appropriate instructions. The jury by its discriminating verdict found that as to seven counts the prescribed tests of guilt were met; that proscribed material was used in a manner in violation of the statute. See and cf. United States v. Limehouse, 1932, 285 U.S. 424, 52 S. Ct. 412, 76 L. Ed. 843, and see Note 76 L. Ed. 845, at pages 848, 849, 851; Sunshine Book Co. v. Summerfield, D.C.D.C.1955, 128 F.Supp. 564, at page 568, affirmed D.C.Cir., 249 F.2d 114; One Inc. v. Olesen, 9 Cir., 1957, 241 F.2d 772; United States v. Hornick, 3 Cir., 1956, 229 F.2d 120, at page 122; United States v. Smith, supra; 41 Am.Jur., Post Office, §§ 116, 117; and see United States v. Roth, 2 Cir., 1956, 237 F.2d 796, at page 799 as to '* * * a feeling of disgust and revulsion'.
Defendant's motions will be denied.