134 Ky. 575 | Ky. Ct. App. | 1909
Opinion of the court by
— Reversing.
At said time said Kinnaird was an elderly married man, living with his wife, and the said written article aforesaid purported to be a love letter to the aforesaid young lady from--, describing the alleged diseases of his said wife, predicting her demise, and making love to said young lady, all of which was in purport and language immoral, offensive, indecent and disgusting. The grand jury is not now in possession of said instrument, and for that reason it can not be filed herewith” — the appellant was convicted, and his punishment fixed at a fine of $260 and 120 days’ confinement in the county jail. The statute under which the indictment was found reads as follows:
“Section 1352. Any person or corporation who sells, lends, gives away or shows or offers to sell, lend, give away or show, or has in his possession with intent to sell, lend or give away, or to show, or advertises in any manner, or who otherwise offers for loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, newspaper, story-paper, writing, paper, picture, drawing, photograph, figure or image, or any
The letter mentioned in the indictment contains many expressions like these:
My. dearley beloved sweet little friend I. avail, my. self of this optunity of writing to you To let you no that you hav. a friend that Loves you most Dearley. Sence the day i first Met you at the corner of The School house in which you teach, yess. I believe I can say, and tell the Truth from the hart That you have not been often my mind one hour at a time except when I was buisy engaged are a sleep.
“as you Steped from Behind some other girl To extend to me the hand of acquents you seamed Like a engel Let down From heaven. 0, those Sweet eyes Like bright Morning stars seamed To speak in thunder tones I am to bee your next Loving Deare. * * “For true Love is stronger Then Death and sharper Then a. two edge. Soard and Covers a Multotude of
“For Trudy is in failing health She is hording on the Bright Deseas The Landrum wiming are verry short lived People and are verry Much subject to Prorales.
During the trial, and over the objection of counsel for the appellant, the court permitted to be read to the jury letters written by appellant to Miss Watson after the indictment had been returned against him, in which we find, among others of like character, the following sentiments:
“My. most hiley esteamed friend. It behoes me to wriglit to you this Letter as i understand you wer some what affended at a former letter Edy i do not Remember all that i wrote in that Letter it seames like a dream it was written on Lection, day and if there was a sober man in. the county that day it was a man that Does not drink are one that has no friends are staid at home.
“Edy i do not blame you I Blame your Counsalmen In the first place it aught Never hav been let git out That i Even wrote,you a letter then in the Next place your father aught to have come To See me and Kniped it in The bud in Stid of going and pooring oil on you For the publick to set fire To * * *”
“Most hiley Esteamed Edy Watson
“Miss Edy in all off my Farmer Communication to you I hav all wais address you as a friend this clause I will hav to omit at this writing. * * *
“Edy what hav you heard That i coud hav said that has. Set you so against Me Edy is you hav Ever heard a word that i hav said Detremental to your
“Edy. I. did tell Tid pace That you had all wais treated Me with So much respeck Love & Kindness that i cood Not help loving you But Edy this is nothing To become affended at why the Blesed word comands us to love Each as we do our selves off corse this dos not mean Lusty love and no such a thought has Ever Entered my hart for we are warned that to Look a Pona woman with Lust is a sin all Ready in the hart, and again we are warned by the word off our Blesed lord & master that he that puttith his wife a way which meanes To cast hur a side and marry a nother commits a dultry and that no a dultries can Enter the Kingdom off god
“So Deare Edy if you hav Ever Conceived of such a thought for my sake and your sake and gods sake Brush it a side for i am as Oleare off harbern such thoughs in my hart as the waiter that Drips from the ice that hangs To the hiest clifts off The aerat mountains So Deare Edy what is it I hav said are dun That you will pass me by and never Rais your Eyes Edy i am sorry to have to Make this comparison But you Remind me of a Deare Brother i hav living in Western organ he is a Big doctor now he came To See us a bout 5 years a go he staid six weeks at My house he and his wife and two children. We just worsheped them we all dun all in our power to make Them feel happy and welcom Then i loand him my Seary and team To go a visaten and he keep them 2 weeks let The Team Run a way and Seard up my seary, and i made no charge for nuthing i dun for him and when he left For home i loaned him $50 hav his note with 5 years accumilated intrus and he wont as
“Edy trudy has given me hailcolumbay sense she found out a bout That letter and Thretten to write to your mother but I perswaded her not to wright so i don’t gess she has Ever wrote yet If she has i never hav heard of it i hope she wont for i think she is a little wrong i no she Is in some things. * * *
“My. Deare much Esteamed Edithe Watson
“I wrote you a long letter a bout one month a go I look for some kind of answer But never hav Reseived a word yet so i Now withdraw My proppersition and say That if Nuthing Els will Do you wee will let the court settle it. * * *
“Deare Edy i want to ask you a question and i want you to answer it as a honest Lady for my own sates-faction In short Edy is not old Jim Pace the verry old Rotten Egg Incubater that hatch all this trubble
“I believe he was and will all wais believe it untill you tell me he was not * * *
“in that long letter I wrote you i made a misstake ine one of the Scripture Reffernce i ask you to Read i told you to turn to mathew 23 and Read from the 36 to the 40 verse i shood have said the 22 chapter It teaches us how we aught to live and Esteam Each other Edy the boys got a lot off New Reckords Chris-man a mong them was one the title was when the sun shies Nelly and the clouds go Drifting by Dont you. Sicy For we. will, bee happy By. &. By * * *
The appellant was an elderly married man. Miss Watson a young lady 21 years of age, who taught school in the neighborhood in. which appellant resided.
First. The demurrer to the indictment should have been sustained because it failed to set out the writing, or give any sufficient reason why it was not exhibited with the indictment. The statement that “the grand jury is not now in possession of said instrument, and for that reason it can not be filed herewith,” is not sufficient to excuse the failure to set it out in the indictment. The general rule in reference to incorporating in the indictment a writing upon which the indictment is founded is that the writing must be set out in the indictment in words and figures unless it has been lost or destroyed, or is in the possession of the accused, or contains matter too obscene or filthy to be perpetuated as a part of the records of a court. Wharton’s Criminal Pleadings & Practice, Secs. 166, 202; Bishop’s Criminal Procedure, Sec. 509; Commonwealth v. McCance, 164 Mass. 162, 41 N. E. 133, 29 L. R. A. 61; State v. Smith, 17 R. I. 371, 22 Atl. 282; State v. Hayward, 83 Mo., 299; State v. Brown, 27 Vt. 619; McNair v. People, 89 Ill. 441; State v. Zurhost, 75 Ohio St. 232, 79 N. E. 238, 116 Am. St. Rep. 724, 9 Am. & Eng. Ann. Cas. p. 45.
A person who is charged with the commission of a penal or criminal offense that grows out of a writing, or alteration in a writing, made by him is entitled,
The averments in the indictment in the case before us do not bring it within any of the exceptions stated that will excuse the production of the writing as a part of the indictment. The charge that the writing was “indecent, obscene, offensive, immoral and disgusting” is merely a conclusion of the pleader. Whether or not a writing is indecent, obscene, offensive, immoral, or disgusting in the sense that a prosecution will lie for the publication of it is a question for the court to dispose of in the first instance, if a demurrer to the indictment is filed. If, in the opinion
This indictment does not contain any statément whatever of the acts constituting the offense. A person of common understanding can not read it and know whether or not an offense was committed. In the opinion of the pleader an offense was committed; but it is a statement in ordinary and concise language of the acts done that constitute the offense, and not the opinion of the pleader. Stowers v. Commonwealth, 12 Bush, 342; Commonwealth v. Williams, 13 Bush, 267; Commonwealth v. Bowman, 96 Ky. 40, 27 S. W. 8.16, 16 Ky. Law Rep. 222.
Second. Does the statute supra, under which the indictment was found, apply to or embrace a writing in the form of a letter sent or delivered by one person to another, and intended to be a private communication? In considering this feature of the case we may with much propriety inquire into the purpose of the Legislature in the enactment of the law under which the indictment was found, and the reasons that induced its passage. The title to the act reads, “an act to prevent the printing and distribution of obscene literature and the sale or exhibition of obscene pictures, and the manufacture or distribution or sale of articles or instruments for immoral use.” And
Third. Is the letter obscene, lewd, lascivious, indecent, or disgusting within the meaning of the statute? We think not.. The letter is vulgar, but not obscene, foolish, but-not lewd, ridiculous, but not indecent, amusing, but not disgusting. What the Legislature had in mind was to prevent the circulation and distribution of printed or written matter that had a tendency to corrupt or deprave the morals of those
“It is difficult to draw the line, in cases of this character, between publications that are permissible and those that come within the condemnation of the statute. Different persons have different views as to what constitutes a lewd, lascivious, or indecent publication. What one would condemn as vulgar, profane or indecent another might look upon as a legitimate and proper record of the news of the day; although all will readily agree that publications that have a tendency to corrupt the morals and deprave the taste of the people should be punished or suppressed. We may therefore safely say that no general rule can be laid down. Each case must be judged by the evidence presented in it; and to the common sense of the courts and juries must be left the question whether or not the matter complained of, considering all the circumstances of its publication, is within the meaning of the statute.”
This letter is offensive to good taste. It was improper for the appellant to have written it, and it was well calculated to wound the feelings of Miss Watson, but we can not find anything in the language in the letter either obscene, indecent, or lascivious. It is the product of .an illiterate and foolish old man, and is more apt to excite laughter than impure desires or immoral or sensual thoughts. We do not believe that the morals of any person, however open their mind might be to evil influences, could be corrupted by reading this letter, nor is there any thought expressed in it that would have a tendency to create or foster a low or depraved taste. The mere fact that
Fourth. Upon what theory the trial judge admitted to the jury as competent evidence the letters written by the appellant after the indictment had been returned against him, we are not advised. That these letters were incompetent, and calculated to prejudice the minds of the jurors, there can be little doubt. They did not throw light upon any issue in the case. In fact there was no issue as to the writing and sending of the letter. These facts were admitted, and the only open question was whether or not it constituted an offense within the meaning of the statute.
Wherefore the judgment of the lower court is reversed, with directions to sustain a demurrer to the indictment.