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whom it is dedicated—they should acquit the Defendant."
Your Honor neither affirmed nor denied, but your language weighed heavily against this Defendant.
Instead of affirming a well settled principle of the law—you said "Well gentlemen it may be under peculiar circumstances, that a person may derive benefit from the book, but placed indiscriminately in the hands of persons not requiring such advice and benefit and it tends to inflame their minds, and is obscene in its character, then gentlemen it is not protected.
It is for you to determine the character of the book if in your judgment you think the book is fit and proper for the welfare of society, and that such a book as that ought to be published, and it is such as society demands, and ought to go into your families to be handed down to your sons and daughters and placed in boarding schools, and so forth, for general useful information, why then if that be the character of the book it is your duty to acquit the defendant,"
Court.—The point could not be put more broadly than that.
Mr. Kilgore.—Yes your Honor, but it begged the whole question. We proved by several witnesses that the book had benefitted them. No "peculiar circumstances" were proven. We proved that the book was not "placed indiscriminately in the hands of persons, whether they required such advice or not. It was never intended for a school book, for boarding schools or any other schools, but it was a strictly private book for married persons He never sold a copy to any person under eighteen years of age and not then till satisfied they were about to become husbands or wives. He never sent a copy by mail, without being satisfied the party sending for it was a proper person to have it, and always sent it under seal. I have been told on one occasion he gave away a dozen copies of the book, for proper distribution, so confidant was he it would do good: Where people were poor he always gave them the book, when he thought they needed its instruction, without money and without price. His object was not mere gain, but to teach his fellow men to obey the laws of their own nature. The seventh point, is the exact language of well settled principles of the law.
"If the jury believe the defendant had in view the benefit of society—however wrong the ideas or objectionable the language—there is no malice and he should be acquitted," properly affirmed, according to the book would have acquitted this defendant.
Court.—Suppose the Jappanese should come here some day, and should perform hakari, on himself, would he be a murderer or not? How far would his conscience and his views of propriety protect him? You might say he was insane.
Mr Kilgore.—I say he could not be convicted of murder under the law of any State in the Union.
Court.—I said if you put it upon the ground of insanity you are all right.
Mr. Kilgore.—When a person believes, (not always what he professes to believe) religiously that he should give his child to the Delaware, as people have been taught by their priests through all the past, to sacrifice their children to appease the wrath of the Great Spirit, (following the murderous example of Abraham, so much admired as the father of the faithful, by christians) giving them to the Ganges, or the car of Juggernaut; if it were possible for such a scene to be enacted in Philadelphia to day from a consciencious belief it was duty thus to do, no law would hold that person responsible as a criminal, because all crime involves a wrong intent. Such a person would be pronounced by the law insane, but if the intent was good, it would be no crime for which the law would hold him responsible. The law is directly in conflict with what your Honor said upon the eighth point, contained in our fifteenth reason for a new trial. That "it is not his view as to what will injure Society, that is to determine his guilt or innocence."
You also said "The whole defence is not that he was not offering it for sale, but that he was not offering an obscene book."
This was a gross misstatement of a fact, which ought to give us a new trial. It is the right of this defendant, because your Honor made so great a mistake. There is a whole avalanche of cases where new
