At the April term, 1916, Wilbur J. Charville was indicted by the grand jury of Huron county, the indictment containing two counts. The second count of this indictment charged him with unlawfully and knowingly having in his possessiоn on March 15,. 1916, for the purpose of selling, and with then selling to one Arthur C. Link, eight obscene, lewd and lascivious photographs. The first count of this indictment was the samе as the. second except that the charge described the articles as pictures instead of photographs.
He now prosecutes error to this court, contending the court erred in overruling- the motions to quash the indictment, and likewise in overruling the demurrers thereto. No bill оf exceptions was taken and the case is submitted to this court solely on the exceptions to the judgments rendered on the motions and demurrers as aforesaid.
It is claimed that the indictment is bad for duplicity, and because it fails to show how the articles mentioned were sold, and because it does not contain a copy of the photographs nor any facts showing that they were either obscene, lewd or lascivious.
We have no hesitancy in reaching a conclusion that the indictment is not objectionable on either of the first two grounds stated. It is not justly subject to the charge of duplicity; nor is it lacking in certainty for failing to state in detail how the photographs were sold.
The criticism on the indictment that it contains neither a copy of the photographs nor any averments .showing how the same are obscene, lewd or lascivious, and no excuse for failing to-make such an averment, is not so easily disposed of. It is quite true that the rules of pleading in criminal cases of this character justify omitting from indictments obscene allegations, but it appears to be
It was under consideration by the supreme court in The State of Ohio v. Zurhorst;
The indictment in the case at bar fails to contain any such averment. We must therefore reach the conclusion that it is dеfective and justly subject to the criticism made against it.
Having reached this conclusion, it does not necessarily follow that the judgment must be reversed and the defendant discharged. The records of the courts contain cases where violators of
Therefore, even though the indictment is defective for the reason already stated, the question remains whether such defect is one which tends to prejudice the substаntial rights of the defendant. No question is or could be made but that the indictment would be valid if it contained an averment that the obscene, lewd and lascivious рhotographs were too obscene to set out or to further describe. Is the omission of that averment in the indictment so prejudicial to the substantial rights of the defendant as to require a judgment of reversal? We are unanimously of the opinion that it is not. If the averment were in the indictment, it necessarily would not аdvise the defendant of anything which he did not already know. The indictment mentions eight particular photographs which were obscene, lewd and lascivious, and which
Thе section of the General Code under consideration has been many times cited and construed. It will only be necessary to refer to one or two оf the cases. In Lynch v. State of Ohio,
In Tingue v. The State,
Whether the substantial-prejudice statute could be applied to a case where the indictment charges the use of obscene and licentious language, and an infirmity exists therein similar to that in the case at bar, need not be determined. An indictmеnt charging such offense without setting out the language, and without giving an excuse for the omission, was held bad by the common pleas court in Hummel v. The State, 10 O. D., 492, apparently without giving consideration to the section of the General Code
In view of the fact that no bill of exceptions was taken, an interesting question has arisen which we deem it unnecessary to decide, namely, whether the court might not be justified in assuming, in favor of the regularity of the judgment, that on the trial of the case the defendant himself may have made such admissions or statements, or offered such evidence, or permitted the stаte to prove, without objection, such matters as would have cured the defects in the indictment.
We hold that while good pleading would have required that thе indictment contain a copy of the photographs, or such description of the same as decency would permit, or an averment that the same were too obscene for recital, yet such failure was not in this case prejudicial to the substantial rights of the defendant.
The judgment will, therefore,, be affirmed.
Judgment affirmed.