umrnn-snrss v. BARBER. 55
age and capacity, tosbe- determined by the facts and circumstances de-
zveloped on the trial. While I held that the boy was capable of exercis-
ing some degree of care, still he was not subjected to the same rules of
conduct iasan adult. I instructed the jury that it was incumbent upon
the boy to exercise vigilance for his safety, yet only such care was re- ,
quired of him as could reasonably be expected of a child of his age and ,
capacity. I put it to the jury to determine whether he did exercise
such care, and the verdict did not sustain the defense of contributory
negligence. It is a close case, and not free from doubt. If I am wrong,
the remedy of the defendant.is*clear. Motion for new trial denied;
` ` , . Unrrnn STATES v. BARBER.
, _ (District Court, D. .Neb1·acka. November'Term, 1888.)
1. Pos·r40r·urcn—Orrnnsns dG·AINS’l"POSTAL Laws-—Ac·r Cone. Sum. 26, 1888.
· Act Cong; 26th September, 1888, amending section 2 ofthe act of 18th June,
1888, relatingto non·ma1lab1e matter, changes all former penalties provided
for that oifense. V
2. Sun:. ··   ~ · ·
, .fl‘his_last law has no saving clause relative to otfenses arising under the said
_ second section, and offenses committed prior to the 26th of September, 1888.
cannot be punished under the present law. The portion of said section which
. , lixedithe punishment for the offenses therein enumerated has been repealed
by implication. j, , , , _ , a
_(8ylZabaa_oy the Uourt.) _ A
` `On the Oourtls Motion in Arrest of Judgment. '
W. lL.` Barber was tried and convicted under the act of congress of
June 18, 1888, for depositing in the post-office non-mailable matter.
_ I George E. Pritchett, for the United States.
Mr. Munn, for defendant. I " ` '
j DUNDY, J. On thc18th day of June, 1888, congress passed an act,
`entitled "An act relating to postal crimes, and amendatory of the statutes
therein mentioned," which seems to have gone further than congress has -
ever before ventured in that direction. New offenses have been created
by that act, and new penalties have been prescribed for old oifenses. _
The latter part of section 2 of said act is all that seems necessary to `con-
sider in this connection. That is as follows:
. "And all matter otherwise mailable by law upon the envelope or outside
cover or wrapper oftwhich, or postal·card upon which, indecent, lewd, lasciv-
ions, obscene, libelous, scurrilous, or threatening delineations, epithets, terms,
or language, or reflecting injurious1y upon the character or conduct of an-
Hother, may be written orprinted, are hereby declared to be non-mailable mat-
ter, and shall not be conveyed in the mails, nor delivered from any post-odice,
, nor by any letter-carriertand any person who shall knowingly deposit or cause
t to be deposited for mailing ordelivery anything declared by this section to be