Maurice L. Roufa was charged by bill of information with a violation of LSA-R.S. 14:106(2), the Louisiana Obscenity Statute. 1 The trial court sustained a Motion to Quash filed by the defendant; from that judgment, the State of Louisiana has appealed.
*477 Paragraph Two of the Louisiana Obscenity Statute recites:
“Obscenity is the intentional:
“Production, sale, exhibition, possession with intention to display, exhibit, or sell, or the advertisement of, any obscene, lewd, lascivious, filthy, or sexually indecent print, picture, motion picture, written composition, model, instrument, contrivance or thing of whatsoever description;” 2 (Act 388 of 19S8.)
Defendant averred in his Motion to Quash that:
“1. The said bill of information fails to allege an offense fоr which defendant could be convicted.
“2. That the statute under which said defendant is charged is unconstitutional, in violation of the Constitution of the United States of America and the Constitution of the State of Louisiana and more particularly said statute is in violation of the First and Fourtеenth Amendments to the Constitution of the United States of America and Article 1, Section 3 and Article 1, Section 2 of the Constitution of the State of Louisiana. 3
“3. That the statute under which defendant is charged has been declared unconstitutional by the Supreme Court of the State of Louisiana.
“4. That the said bill of information is so vague, general and obscure so as to prevent the defendant from answering to the charge.”
The trial court found that LSA-R.S. 14:106(2) lacked the necessary requirement of
scienter
and was in violation of the First and Fourteenth Amendments to the United States Constitution and Article I, Section 3, and Article I, Section 2, of the
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Constitution of Louisiana. It stated that in view of its findings, on the question of scienter, it was not necessary to rule on the other arguments advanced by defendant in his Motion to Quash. Authority for the trial court’s ruling was the case of Smith v. People of State of California,
The State contends that the trial court was in error in its ruling and argues that it is readily apparent that the Louisiana Obscenity Statute requires that the proscribed acts shall be done intentionally or with general criminal intent. It states:
“The word ‘intentional,’ whеn used in connection with the doing of a wrongful act, signifies, not only that the party intended to do the particular act, but to do it knowing at the time it was wrongful. * * * Unquestionably, when our statute requires that the prohibited act shall be done ‘intentionally,’ or with a general criminal intent, as is the requirement of our law, then the requirement that scienter element in the statute as laid down in the ‘Smith case,’ is met.”
We think it appropriate to first discuss the Smith case, supra, which we find inapposite to the instant prosecution. The Municipal Code of the City of Los Angeles, California, Sеction 41.01.1, provided:
“Indecent Writings, Etc. — Possession Prohibited:
“It shall be unlawful for any person to have in his possession any obscene or indecent writing, book, pamphlet, picture, photograph, drawing, figure, motion picture film, phonograph recording, wire recording or transcription of any kind in any of the follоwing places:
‡ ‡ ‡ ‡ ‡
“2. In any place of business where * * * school supplies, magazines, books, pamphlets, papers, pictures or postcards are sold or kept for sale;”
Smith, the proprietor of a bookstore, was convicted under the above ordinanсe of the possession in his bookstore of a certain book found upon judicial investigation to be obscene.
On Appeal, the United States Supreme Court found that the ordinance, by not requiring scienter and making the possession of obscene matter a criminal offense, violated the fundamental concept of freedom of speech. It stated [
“We have said: ‘The fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensаble to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by *481 Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessаry to prevent encroachment upon more important interests.’ Roth v. United States, supra,354 U.S. 476 , at page 488,77 S.Ct. 1304 , at page 1311,1 L.Ed. 2d 1498 . This ordinance opens that door too far. The existence of the State’s power to prevent the distribution of obscene matter does not mean that there can bе no constitutional barrier to any form of practical exercise of that power. Cf. Dean Milk Co. v. City of Madison,340 U.S. 349 ,71 S.Ct. 295 ,95 L.Ed. 329 . It is plain to us that the ordinance in question, though aimed at obscene matter, has such a tendency to inhibit constitutionally protected expression that it сannot stand under the Constitution.”
Black’s Law Dictionary, Fourth Edition, defines “Scienter” as follows:
“Lat. Knowingly. The term is used in pleading to signify an allegation (or that part of the declaration or indictment which contains it) setting out the defendant’s previous knowledge of the cause which lеd to the injury complained of, or rather his previous knowledge of a state of facts which it was his duty to guard against, and his omission to do which has led to the injury complained of. The insertion of such an allegation is called ‘laying the action (or indictment) with a scienter.’ And the term is frequently used tо signify the defendant’s guilty knowledge.”
Cassell’s Latin Dictionary, 1958 printing, defines “Scienter,” “adv.” as “skilfully, expertly; dicere, Cic.” It defines “Scientia” as “a knowing, knowledge of, acquaintance with.”
The statute under consideration herein recites that Obscenity (the prohibited act) must be intentional, and that possession must be with intention to display and exhibit obscene, lewd, lascivious, filthy, or sexually indecent matter.
In Webster’s New World Dictionary, College Edition, we find:
“Syn. intention is the general word implying a having something in mind as a plan or design or referring to the plan had in mind; intent, a somewhat formal term now largely in legal usage, connotes more deliberation (assault with intent to kill) ; * * * ”
We also find many and numerous definitions of “Intent” and “Intention.” “ ‘Intent’ is an operation of the mind.” State Farm Mut. Auto. Ins. Co. v. Miller,
In State v. Fulco,
The statement that the criminal intent or guilty knowledge of the defendant was necessarily a question of fact for the jury was made in State of Louisiana v. Birdsell,
In Dennis v. United States,
“ * * * A survey of Title 18 of the U.S. Code indicates that the vast majority of the crimes designated by that Title require, by express language, proof of the existence of a certain mental statе, in words such as ‘knowingly,’ ‘maliciously,’ ‘wilfully,’ ‘with the purpose of,’ ‘with intent to,’ or combinations or permutations of these and synonymous terms. The existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence. See Amеrican Communications Ass’n v. Douds, 1950,339 U.S. 382 , 411,70 S.Ct. 674 ,94 L.Ed. 925 , 950.” See, Morissette v. United States of America,342 U.S. 246 ,72 S.Ct. 240 ,96 L.Ed. 288 ; Reynolds v. United States,98 U.S. 145 ,25 L.Ed. 244 . 4
We conclude that the word “Intentional” and the phrase “With Inten
*485
tion” in the Louisiana Obscenity Statute mean that knowledge is implied where one has criminal intent. It leaps to the mind that knowledge is necessary to intention
5
and that one cannot have intention without knowledge. We find that Paragraph Two of LSA-R.S. 14:106 meets the requirements laid down in the Smith case (
“Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, hаs consistently held that lack of precision is not itself offensive to the requirements of due process. ‘ * * * The Constitution does not require impossible standards’; all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by cоmmon understanding and practices * * *.’ United States v. Petrillo,332 U.S. 1 , 7-8,67 S.Ct. 1538 , 1542,91 L.Ed. 1877 . These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark ‘ * * * boundaries sufficiently distinct for judges and juries fairly to administer thе law * * *. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense * * * ’ Id.,332 U.S. at page 7 ,67 S.Ct. at page 1542 . * * * ” Roth v. United States,354 U.S. 476 ,77 S.Ct. 1304 , 1312,1 L.Ed.2d 1498 .
“The articles of this Code cannot be extended by аnalogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a gemiine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” (Emphasis ours.) LSA-R.S. 14:3.
The words of the instant statute have a well defined and a common accepted
*487
meaning and are not vague. See, State v. Evans et al.,
We find no merit in defendant’s contention that the Louisiana Obscenity Statute, Paragraрh Two, violates the “Freedom of Speech” and “Due Process” provisions of the Federal and State Constitutions. The United States Supreme Court emphatically stated, in Smith v. People of the State of California, supra, [
The actual obscenity of the publications allegedly intentionally possessed by the defendant will be a question of fact for the trial court’s determination. The criminal intent or guilty knowledge of the defendant will also be a question of fact for the trial сourt’s determination. State v. Birdsell,
We find that LSA-R.S. 14:106(2) is not in violation of the First and Fourteenth Amendments to the United States Constitution and Article I, Section 3, and Article I, Section 2, of the Constitution of Louisiana; it is constitutional and valid. 6
For the reasons assigned, the judgment of the trial court, quashing the bill of information herein filed against the defendant, Maurice L. Roufa, and discharging the defendant without date, is reversed and set aside; and, it is now ordered that the cause be remanded for trial.
Notes
. The pertinent part of the information reads as follows: “ * * * that one Maurice Roufa * * * on the second day of March in the year of оur Lord, one thousand nine hundred and sixty * * * did wilfully and unlawfully possess with the intention to display and exhibit, obscene, lewd, lascivious, filthy and sexually indecent prints and pictures contrary to the form of the statute of the State of Louisiana * * * ”
. Act 199 of 1960 (approved June 30, 1960) amended and re-enaсted the Obscenity Statute to read:
“Obscenity is the intentional: * * *
“(2) Production, sale, exhibition, gift, or advertisement with the intent to primarily appeal to the prurient interest of the average person, of any lewd, lascivious, filthy or sexually indecent written composition, printed composition, book, magazine, pamphlet, newspaper, story paper, writing, phonograph record, picture, drawing, motion picture film, figure, image, wire or tape recording or any written, printed or recorded matter of sexually indecent character which may or may not requirе mechanical or other means to be transmitted into auditory, visual or sensory representations of sucli sexually indecent character.”
. Art. I, Sec. 2, La.Const. of 1921, LSA, recites: “No person shall be deprived of life, liberty or property, except by due process of law. Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.”
Art. I, Sec. 3, La.Const. of 1921, reads: “No law shall ever be passed to curtail or restrain the liberty of speech or of the press; any person may speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”
. A reference to Vol. 22 Words and Phrases, Intent, Knowledge implied, p. 13, and Intentionally, Knowingly, p. 35, will disclose that “Intent,” “Intentionally,” and “Knowledge,” are combinations of words.
. As far back as October, 1901, in the case of Northwestern Benev. Soc. of City of Duluth v. Dudley,
. The Motion to Quash avers that the stаtute under which defendant was charged has been declared unconstitutional by the Supreme Court of Louisiana. Counsel is in error. Only Paragraph Three of LSA-R.S. 14:106 was dedared unconstitutional in the case of State of Louisiana v. Christine, 1960,