Montross v. State

72 Ga. 261 | Ga. | 1884

Hall, Justice.

The accused was tried in the city court of Atlanta, found guilty, and sentenced to pay a fine of one thousand dollars, or, in default thereof, to labor for one year on the public works, for giving away an indecent pictorial newspaper, tending to debauch the public morals, with intent to circulate the same, known as the “National Police Gazette.” He moved for a new trial, upon various grounds, which motion was overruled, and he excepted, and brought the case here by writ of error.

1. A glance at the pictures with which the papers sent up in the record are illustrated, and a slight examination of the printed matter, will be sufficient to fix the character of this publication as indecent, with an unmistakable tendency to vitiate the public taste and to debauch the public morals. The giving away and circulation of these papers having been admitted by the accused, the jury was clearly justified in returning a verdict of guilty; indeed, if they regarded their duty to the state, this evidence left them no alternative—it required the finding. There is, therefore, nothing in the two first grounds of the motion, that the verdict is contrary to evidence, without evidence to support it, and decidedly and strongly against the weight of evidence.

2. Under section 4537 (b) of the Code, which the accused was found guilty of violating, a charge by the court to the effect that the circulation of a newspaper other than a pictorial one, however indecent, was not prohibited by this law, however much the failure to make such a publication penal was to be regretted, if erroneous, did not hurt him, and therefore afforded no ground of exception.

3. A charge submitting to the jury not only the reading matter, but the illustrations, in the newspapers given away, in order that they might determine their character, was applicable to the case as made, and in accordance with the terms of the statute.

4. We are of opinion that the court did not err in interrupting the accused in making his statement to the jury, for the purpose of prohibiting him from reading to them an article from another newspaper, and also exhibiting to them pictures publicly displayed elsewhere, which he claimed to be of a more indecent character, and as having a more direct tendency to debauch public morals than anything that appeared in the paper prosecuted. As well might the keeper of a lewd and disorderly house, or the proprietor of a gaming house or tables, claim that he had not violated the law, when.called upon to answer for his offence, because others indulged in these nefarious practices openly and with impunity and were not prosecuted for their offences against public order and decency.

Under the Code, §4637, the defendant in a criminal case has the right to make to the court and jury a statement, not under oath, to which tto jury may give such weight as they may think proper, preferring it to the sworn testimony in the case, in the event they believe it to be true, and this court has in several instances given a wide scope to the subjects which the statement may embrace; but we apprehend that the privi.ege has never been carried so far as to allow the party to state wholly irrelevant matter, or such as would be violative of every principle and rule of evidence.

The cases of Loyd vs. The State, 45 Ga., 58, and Coxwell vs. The State, 66 Ib., 309, cited by the zealous and able counsel of the defendant as against this limitation of the privilege, in fact sustain it. In the first it is said that “ where a prisoner makes a rambling statement, not pertinent to the issue, it is not error in the court to admonish him that he must confine his statement to mat- ' ters bearing on the case; ” and in the other,, that “ the prisoner may be restrained, but should be alloweddo state such facts as would be admissible in evidence.” To have suffered this defendant to roam through the wide field of vulgar, erotic literature and obscene pictorial illustrations, and to parade before the court and country nude pictures, designed to excite passion, and lascivious and wanton articles taken from the daily press, would not only have been an abuse of the law under which this right is claimed, but would have been pandering to and encouraging the very evil which the statute then being enforced was designed to suppress. No respectable, magistrate could for a moment tolerate a spectacle so gross and outrageous.

The record in this case does not disclose what pictures those were which it was proposed to exhibit, or what were the articles the defendant attempted to read. Wo cannot, therefore, judge whether they were relevant or proper. If such had been the fact, it should have been made to appear.

The court did right in prohibiting this triai irom being made the medium for advertising to the public papers of the character which this defendant seems to have been in. terested in disseminating.

5. Every person is presumed to have intended the natural and legal consequences'of his conduct, whether that conduct be malum in se, as we think this was, or malum prohibitum. There is no pretence that this defendant was unapprised of the law under which ho is prosecuted. According to his own showing, he -knew of its existence, and violated it for the express purpose, as he states, of making a test case. He was anxious to vindicate the character of this paper from the charges brought against it, and with that view, and- that he might not fail in his object, and to insure a prosecution, he sought the chief of police and bestowed upon him copies of this p'aper. Surely lie cannot complain now that he succeeded in accomplishing his design, or that the court in its charge did him injustice as to the intent with which he committed the act. That he was disappointed in the result, and that his experiment cost him more than he expected, are matters which it is not our province to review.

The sentence imposed is not such a thing as can be put into a motion for a new trial.

Judgment affirmed.