Before HASTINGS, Chief Judge, and SCHNACKENBERG and CASTLE, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
In the district court, Samuel R. Hochman, defendant, was found guilty by the verdict of a jury of a violation of 18 U.S.C.A. § 1462, as charged in counts I and III of an indictment, and judgment was entered for his imprisonment and a fine of $1,000. He was found not guilty on count II.
Count I charged that defendant on or about May 13, 1957 at the city of Milwaukee, in the eastern district of Wisconsin, "did knowingly take from a common carrier, to-wit, the ABC Freight Forwarding Company, Milwaukee, Wisconsin, five (5) copies of an obscene publication called "The Sex Factory" by H. Tennob, which were transported in interstate commerce from New York City, New York, to Milwaukee, Wisconsin * * *." In count III the same charge was made as to a publication called "Virgins Come High".
On this appeal, the errors assigned by defendant relate to the alleged failure of the government's proof to establish that the defendant knowingly took two books (exhibits 1 and 3) from a common carrier, and to the exclusion of certain evidence.
Exhibits 1 and 3 are books bearing the titles "The Sex Factory" and "Virgins Come High". Defendant's counsel upon oral argument in this court admitted for the purpose of this case that these two books are obscene.
Chronologically arranged, the following facts appeared at the trial:
Defendant operated a novelty and book business at 733 West Wisconsin avenue, in Milwaukee. He is a university graduate. In accordance with custom, a salesman for the Padell Book Shop in New York City called on defendant and attempted to sell him books by showing covers torn off books. At that time he did not buy any books, but the salesman left his price list which defendant looked over. In May, 1957, defendant went to New York and, while there, he went to the Padell Book Shop and talked to Padell, to whom he gave his credit references. Padell told him to look around, and defendant, from a list that he had already made out, marked down on an order the books that he wanted. He already knew what he was going to buy. The books he ordered were shipped to him and received May 31, 1957 about 3 P.M., when he signed a receipt therefor. Defendant states that
"at about 15 minutes after the deliveryman left the shipment on the floor, three gentlemen came in and introduced themselves as FBI men, saying that they were informed that I was receiving an obscene book, 'The Sex Factory'. With my permission they opened the carton. It contained 101 books. The men took the entire carton of books. They returned 65 or 66 of the books, 13 titles and I saw them. Some of these 13 titles that were returned looked even worse than 'The Sex Factory' and 'Virgins Come High'."
Defendant testified he had never read these two books.
Max Padell, a witness for the government testified that on the occasion of defendant's visit in May, 1957, he let defendant select his own books. Padell could see Hochman checking the titles of the books for about 15 minutes. He was checking by glancing through them. Defendant riffled the pages, although Padell did not actually see him read the books.
Julian Clark, an FBI agent, testified that the carton when opened in defendant's store was found to contain books with 20 different titles.*fn1
18 U.S.C.A. § 1462 provides:
"Whoever * * * knowingly deposits with any express company or other common carrier, for carriage in ...