State v. SaylorState v. Saylor
- Reporters:
- , , ,
- Before:
- Herbert
Thе defendant was convicted of violating Sec-2905.34 of the Revised Code, which commands that “no person shall knowingly sell, lend, give away, exhibit, or offer to sell, give away, or exhibit, or publish or offer to publish or have in his possession or under his control an obsсene, lewd, or lascivious book, magazine, pamphlet * * * picture * * (Emphasis added.)
The requirement of knowingly having in possession obscene material wаs explained in State v. Jacobellis (1962), 173 Ohio St. 22, reversed on other grounds, Jacobellis v. Ohio (1964), 378 U. S. 184. The second paragraph of the syllabus reads as follows :
“The words, knowingly possess, as used in Section 2905.34, Revised Code, include ‘scienter’ (guilty knowledge) and ‘mens rea’ (guilty purpose), both of which must be establishеd by proper evidence to sustain a conviction for violation of such section. ’ ’
In further explication of the element of mens rea, or guilty purpose, the majority opinion stated, at 173 Ohio St. 27, 28:
A person “could only be said to violate the law when and if he forms the purpose to use, exhibit or sell it wrongfully, in other words, forms the mens rea and acts in furtherance thereof.
“When this phrase is read in context with and in relation to the rest of the section, it is readily apparent that such phrase does not relate to the mere possession for private and personal gratification but rather to possession and control for the purpose of circulation or exhibition * * (Emphasis added.)
In the case аt bar, it was stipulated that the materials in question werе “not on public display” in the book store. The agrеed statement of facts makes no referenсe or mention of guilty purpose to sell, circulate or exhibit the materials, although an intent to sell, circulate or exhibit such materials was an essentiаl element of the offense. The state argues thаt one may infer a guilty purpose from the fact of possession. However, under Section 2945.04 of the Rеvised Code, the accused is presumed innocent until proved guilty beyond a reasonable doubt. Thus we аre forbidden by statute to indulge in the spec-*141illation, whiсh the state suggests. Moreover, to hold that mere рossession can support an inference of guilty purpose sufficient to convict the acсused would be tantamount to overruling the second paragraph of the syllabus in Jacob ellis which specifically stаtes that “ ‘mens rea’ (guilty purpose) must be established by proper evidence to sustain a convictiоn for violation of” Section 2905.34 of the Revised Code.
The Jacobellis decision is the law of Ohio, and the defendant is entitlеd to rely on it. It has been suggested that the requirement of mens rea is not in the statute; but, even so, any attempt at this time to eliminate the mens rea requirement wоuld confront serious due process objectiоns. See Bouie v. City of Columbia, 378 U. S. 347, 353 (“an unforeseeable judicial enlargement of a criminal statute, applied retroаctively, operates precisely like an ex post facto law, such as Art. I, Section 10, of the Constitution forbids”).
Since the failure of the state to meet the requirements of JacobelUs is dispositive of the case, we do not consider the other assignments of error.
The judgment of the Court of Appeals is reversed.
Judgment reversed.
Taet, C. J., ZimmermAN, Matthias, O’Neill, Schneider and Brown, JJ., concur.