223 Mich. 92 | Mich. | 1923
Defendant edits and publishes in the village of Mears, Oceana county, Michigan, a pamphlet-sized newspaper called “The Mears Newz.” He is charged in the information filed against him with
It is charged that on January 5, 1922, defendant printed, published, sold and distributed a copy of the Hears Newz containing obscene language, figures and descriptions of a nature manifestly tending to corrupt the morals of youth, which are set out at large in the information. On the trial it was shown that copies of the issue of the Hears Newz of that date contained the alleged indecent items, that some copies were sold and at least two copies were received through the post office by subscribers to the paper, one being a married man with a family, who testified that he received the same through the post office as he received any other mail.
Defendant took the stand as a witness in his own behalf and “as bearing upon the question of the absence of any immoral intent” delivered an eulogistic autobiography to the effect that in his childhood he did not attend school until he was 9 years of age but was privately taught at home with a view to his becoming a clergyman; that nevertheless his educational advancement was such that when 17 years of age he was through high school and in college with credits for advance standing for one-fourth of his course in college, and when 19 years of age he was a superintendent of schools, licensed to teach in any school of the State and followed that profession for some years;
On cross-examination he testified that the charged indecent items were furnished him by Bert Post and only printed in a comparatively, few copies of the paper
The charged offending paragraphs in the Extra Wild copies of the Mears Newz are a punning type of coarse effort at wit with a double entendre by playing upon two senses of the same word or words in the combination used, superficially disguising by a harmless, but pointless, statement an apparently intended and grossly vulgar so-called joke, palpably indecent and obscene within the meaning of the act. For like reasons, as stated in People v. Girardin, 1 Mich. 90, and cases there cited, these paragraphs will not be quoted.
At close of the testimony both parties moved for a directed verdict. The trial court held the question of intent was not involved, that the publication complained of contained obscene matter within the meaning of the statute tending to corrupt the morals of the youth into whose hands it might fall, and directed the jury to find defendant guilty, saying they should retire “notwithstanding the court had directed a verdict,” but ordered that when they returned into court and were asked if they had agreed upon a verdict, their foreman should answer that their verdict was guilty as charged, concluding: “In other words your verdict in form in this case will be, ‘We find the respondent guilty as charged.’ ” Under such unqualified command of the court, retirement of the jury served no purpose and was but an idle ceremony. In
Such mandatory method of divesting the jury of all responsibility in a criminal case, even where it is proper for the court to tell them what their duty is, has more than once been a subject of criticism although, on the theory no miscarriage of justice was apparent, verdicts of that class have been sustained where all the essential facts were undisputed, following .the liquor case of People v. Neumann, 85 Mich. 98, where conviction was sustained, but the court there laid down the true rule for the trial court’s guidance as follows:
“The trial judge may, with perfect propriety, state to the jury that the law applied to the facts, which are undisputed, shows the defendant to be guilty of the offense charged, and that it is their duty to so find under the facts and the law. But it has been repeatedly held that he cannot in so many, words direct them that they must bring in a verdict of guilty; and that they are at liberty to find otherwise, if they see fit, under the Federal Constitution, which guarantees to every accused person—
“ ‘The right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed.’
“And verdicts have often been set aside when directed by courts in opposition to this right. See United States v. Taylor, 11 Fed. 470, and cases there cited.”
This court has so frequently and recently had occasion to touch upon that subject where it was claimed the court by instructions less mandatory than here invaded a defendant’s constitutional rights that further comment seems superfluous.
Admittedly it is a general rule that the court shall construe writings put in evidence, and general rules relating to giving instructions to the jury are applicable to prosecutions for obscenity. If these paragraphs were openly couched in vulgar and obscene words, or could as a whole have but one possible meaning, which was in import obscene and such as tended to corrupt the morals of youth, it would unquestionably be the right of the court to so instruct the jury in positive terms; but they in fact contain no words which necessarily, as generally known and commonly used, are vulgar, obscene or even immodest, yet the combination in which they are used discloses in one sense a thinly camouflaged indecent and obscene so-called joke, which defendant contends that he and others of like purity and innocence of thought would not discern because “to the pure all things are pure.” Unfortunately, the pure in heart do not always remain so, and it was for their protection this law was passed.
In construing this composition the court could very
“While it has been held that the question whether or not a particular publication is obscene is for the court, the better rule undoubtedly is that it is for the jury, under instructions from the court as to the meaning of the words.”
The peculiar character of the literary effort under consideration is such that in our opinion defendant is entitled to the judgment of the jury as to its evident obscenity and whether its circulation and introduction into the homes of that community would tend to corrupt the morals of youth.
The various other, questions raised by defendant are not found to demand discussion or serious consideration.
For the reasons stated, the directed verdict is set aside and a new trial granted.