The defendant was tried on an indictment charging that it “did unlawfully import, buy, procure, receive and have in its possession for the purpose of distribution, sale, exhibition and circulation, to persons under the age of eighteen years, certain books, pamphlets, printed papers, description and other things, obscene, indecent and *75 impure manifestly tending to corrupt the morals of youth. ” In a motion for particulars the defendant asked the Commonwealth, among other things, to state “The facts on which . . . [it] relies in support of its allegation in said indictment of distribution, sale, exhibition, and circulation to persons under the age of eighteen years, of certain books, pamphlets, printed matter, and other things obscene, indecent, and impure.” In response, the Commonwealth specified as follows: “The exhibition for perusal and sale in an open book rack prominently displayed in the store and the sale of this and other books without restriction or limitation at twenty-five cents to any would-be purchaser. ” The book involved was “Duke” by Hal Ellson. The case was tried to a judge who found that the story was one which manifestly tended to corrupt the morals of youth and that “this defendant had in its possession this book for the purpose of sale, exhibition, loan or circulation to the general public including a person under the age of eighteen years. ” He found the defendant guilty and imposed a fine. The case comes here on the defendant’s exceptions to certain rulings made by the judge.
One Verville, a police woman employed by the city of Fall River and whose age was thirty-three years, testified that on June 16, 1950, she entered the Hande Shoppe in that city, where books and papers are sold at retail, and purchased a copy of “Duke” from Miss Cash, a clerk employed there.
Miss Cash, called by the Commonwealth, testified as follows: The book in question was displayed on a rack which was installed in the store by one Shea who was “connected with the American News Company.” The books were “placed on the racks by the man who delivered them”; the “storekeeper had nothing to do with that.” The book “Duke” was “supplied by the American News Company and was on the American News rack.” She was given “no instructions ... as to whom these books should be sold.” Books of this sort sold for twenty-five cents. Ordinarily a customer would come into the store and pick out the book *76 he wanted and pay for it, and that is what happened in the sale of “Duke” to the police woman. After books were delivered to the store by a distributor they were charged to the store and were “the store’s books ... to do with as they pleased and the American News Company had nothing further to do with them.” “The American News did not control in any way what the witness or the Hande Shoppe did with the books after they were purchased by the Shoppe.” The witness had “no business connection of any kind with the defendant.” The owner of the store, Mrs. Lang, took care of ordering and paying for the books. Most of the customers who came to the store were “all grown up but there were children under eighteen who did purchase books” there.
One Brereton, a police officer, testified that the defendant’s place of business was a “wholesale establishment” from which books were sold and distributed to retail stores and that there was no evidence of any retail sales there.
The indictment was based on G. L. (Ter. Ed.) c. 272, § 28, as appearing in St. 1945, c. 278, § 1, of which the portions here material are, “Whoever sells or distributes ... to a person under the age of eighteen years a book . . . which is obscene, indecent or impure, or manifestly tends to corrupt the morals of youth, or . . . receives or has in his possession any such book ... for the purpose of sale, exhibition, loan or circulation to a person under the age of eighteen years . . . shall ... be punished . . .
Several offences are embraced in the statute. But reading, as we must, the indictment with the specifications
(Commonwealth
v.
Albert,
At the close of the evidence the defendant presented several requests for rulings. Among those denied were requests 1 and 11 which read: “1. The evidence does not warrant a finding of guilty.” “11. The Commonwealth has failed as a matter of law to adduce facts sufficient to constitute the defendant guilty beyond a reasonable doubt of the charge contained in the indictment.” We are of opinion that the judge erred in denying these requests.
In its motion for particulars the defendant asked thCommonwealth to state “The date or dates and time or times of day when the said offence or offences are alleged to have been committed.” The Commonwealth specified that “The time was within the three months next preceding June 16, 1950, at 2:30 p.m.” This specification was not amended under G. L. (Ter. Ed.) c. 277, § 40, which provides for such amendment where there is a material variance between the evidence and the bill of particulars. Thus the specification affected the indictment and restricted the proof to the matters specified.
Commonwealth
v.
Giles,
*78 Because of what has been said it is not necessary to decide whether the judge's finding that the book in question manifestly tended to corrupt the morals of youth was warranted.
Exceptions sustained.