52 How. Pr. 502 | Court Of Oyer And Terminer New York | 1877
— The same question arises upon the two indictments against the defendant above named. They are both for uttering, writing and publishing a lewd and indecent paper, and they are both demurred to because, as the pleader claims, the indecent writing is not sufficiently described. The
The general rule of pleading is, that the indictment must apprise a party of the crime whereof he or she is accused. The rule is universal, except that it is so far modified when the charge is for uttering or publishing obscene literature, it is unnecessary “ to set out the obscene language in full ; it is enough to aver the fact of the obscenity of the writing, and to give this as an excuse' for not setting it forth ” (2 Wharton's Criminal Law, § 2547 [7th ed.]). But it has never been held, so far as my research extends, that no general description of the writing was necessary.
In Commonwealth agt. Sharpless (2 Sergeant & Rawle, 92), the indictment did generally describe the picture, for exhibiting which the defendants were indicted, by the words, “ A certain lewd, wicked, scandalous, infamous and obscene painting, representing a man in an obscene, imprudent and indecent posture with a woman?' That indictment was properly sustained.
In Commonwealth agt. Holmes (17 Mass., 336), the court held: “ In an indictment for publishing an obscene boob or print, it is sufficient to give a general description thereof, and to aver their evil tending, without copying the book, or minutely describing the print.”
In The State of Vermont agt. Brown (1 Williams, 619), it was held: “ An indictment for selling an obscene boob, or printed paper, should ordinarily set" forth the book or paper in hoec verba, as in indictments for libel or forgery, but this may be dispensed with, and the obscene character of the publication be described in more general terms, if it be of so
In People agt. Girardin (1 Manning, 90, a Michigan case), the publication was of obscene matter in a newspaper, and the title of the paper was given.
In the case before us there is no description whatever of the alleged libellous writing. It is only averred that it was contained in an envelope directed in a particular manner. Ho information is suggested which can put'the defendant on inquiry as to her defense, nor to what subject the obscenity-related. In Knowles agt. The State of Connecticut (3 Day, 103), the indictment was for the exhibition of a “ monster, highly indecent and improper to be seen, or to be exposed as a show.” Of such an indictment the court unanimously said: “ This information alleges that said Knowles exhibited a horrid and unnatural monster, highly indecent, unseemly and improper to be seen, or exposed as a show; but states no circumstances in' the description of its appearance, which' shows this allegation to be true; it cannot be supported, either at common law or on the statute.”
It may be observed that in the case cited there was very much more information given to the defendant than in these before us. He was called upon to defend the character of an exhibition he was making, and that- disclosed to him the alleged obscenity. In these the party is asked to recall every letter written to a particular individual and prepare for an attack which may be made upon any of the correspondence. Hot the slightest thing is mentioned by date, subject-matter, expression, thought or word which identifies or describes the alleged obscene writing. There is, in short, no description whatever. Within any rule or case, which I have seen, these indictments cannot be upheld.
The defendant is entitled to judgment upon both indictments. The rule will be entered as of the day of the argument.
