94 So. 882 | Miss. | 1922
Lead Opinion
delivered the opinion of the court.
'From a judgment of the circuit court finding the defendant guilty, and imposing a nominal fine against him, this appeal is prosecuted.
“Did then and there sell, lend, give away, or show, or had in his possession with intent to sell, lend, give away, show, or advertise, or otherwise offered for loan, gift, sale, or distribution, a certain obscene or indecent book, writing, paper, picture, drawing, or photograph or a certain article of indecent or immoral use, to-wit, the November issue of the Wampus Cat, against the peace and dignity of the state of Mississippi.”
This affidavit practically follows the language of tl^e first part of section 1292 of the Code of 1906 (section 1025, Hemingway’s Code). A plea of nolo contendere was entered in the justice of the peace court whereupon the justice imposed a fine upon the appellant, and he appealed to the circuit court.
In the circuit court the defendant interposed a demurrer to this affidavit. Briefly stated, the demurrer challenges the constitutionality of this section of the Code as being violative of the Fourteenth Amendment to the Constitution of the United States, and as being also in conflict with sections 13, 14, 16, 26, and 32 of the Constitution of the state of Mississippi. The learned circuit judge overruled the demurrer, the defendant interposed a plea of nolo contendere, whereupon a nominal fine was imposed against him.
While some of the early law winters doubted whether or not obscene libels were offenses at common law, 2 Bishop’s New Criminal Law, section 943, thus states the rule:
“The publication of any writing tending to corrupt the public morals is indictable. Hawkins, indeed, doubts whether such a writing, ‘full of obscene ribaldry, without any kind of reflection upon any one,’ is so; but whatever question there may have been at the time he wrote, ‘it is now,’ in the language of Starkie, ‘fully established that any immodest and immoral publication, tending to corrupt the mind and to destroy the love of decency, mor
This statute is an exercise of the police power of the state; which power, broadly speaking, is that to promote order, safety, health, morals, and the general welfare of society. 12 C. J., 904. The right of freedom of speech guaranteed by the two Constitutions is thus well stated in 8 R. C. L., p. 313:
“The constitutional liberty of speech and of the press simply guarantees the right freely to utter and publish whatever the citizen may desire and to be protected in so doing, provided always that such publications are not blasphemous, obscene, and scandalous in their character, so that they1 become an offense against the public, and by their malice and falsehood injuriously affect the character, reputation, or pecuniary interests of individuals.”
In 12 C. J., p. 928, it is stated that the Fourteenth Amendment to the Federal Constitution “does not deprive the states of their police power, however; and, subject to the limitations expressed therein, the states may continue to exercise their police powers as fully as before the adoption of the amendment.” Again, on page 929 of the same work:
“In order that a statute or ordinance may be sustained as an exercise of the police power, the courts must be able to see that the enactment has for its object the prevention of some offense or manifest evil or the preservation of the public health, safety, morals, or general welfare, that there is some clear, real, and substantial connection between the assumed purpose of the enactment and the actual provisions thereof, and that the latter do in some plain, appreciable, and appropriate manner tend toward the accomplishment of the object for which the power is exercised.' The mere restriction of liberty or of property rights cannot of itself be denominated ‘public welfare,’ and treated as a legitimate object of the police power.”
In the case of State v. Van Wye, 136 Mo. 227, 37 S. W. 938, 58 Am. St. Rep. 627, the rule as laid down by Judge Cooley is reiterated practically in the same language, and that court adds: That this “constitutional protection shields no one from responsibility for abuse of this right. To hold that it did would be a cruel libel upon the Bill of Rights itself. . . . Equally numerous and strong are the decisions that obscene publications are without the protection of this provision of our Constitution.” .
This opinion then quotes from U. S. v. Harmon (D. C.), 45 Fed. 414, wherein it is said: “Liberty in all its forms and assertions in this country is regulated by law. It is not an unbridled license. Where vituperation or licentiousness begins, the liberty of the press ends.”
In this opinion numerous authorities are cited upholding the constitutionality of statutes of this character. See, also, State v. McKee, 73 Conn. 18, 46 Atl. 409, 49 L. R. A. 542, 84 Am. St. Rep. 124. It will also be noted that federal statutes, making it a crime to send obscene matter through the mails, have been held constitutional. Ex parte Jackson, 96 U. S. 727, 24 L. Ed. 877; In re Rapier, 143 U. S. 110, 12 Sup. Ct. 374, 36 L. Ed. 93; Konda v. U. S., 166 Fed. 91, 92 C. C. A. 75, 22 L. R. A. (N. S.) 304.
Without specifically entering into an elaborate discussion of the sections of the state Constitution alleged to be violated, the same reasons apply to these sections as those relating to the Federal Constitution. It is, however, necessary to notice the contention of appellant to the effect that this statute charges no crime, because the word “obscene”
“The word ‘obscene,’ when used, as in the statute, to describe the character of a book, pamphlet, or paper, means containing immodest and indecent matter, the reading whereof would have a tendency to deprave and corrupt the minds of those into whose hands the publication might fall, whose minds are open to such immoral influences”— citing U. S. v. Moore (D. C.), 129 Fed. 159, 161; U. S. v. Clarke (D. C.), 38 Fed. 732.
Again: “The word ‘obscene’ means offensive to senses; repulsive; disgusting; foul; filthy; offensive to modesty or decency; impure; unchaste; indecent; lewd” — citing Holcombe v. State, 5 Ga. App. 47, 62 S. E. 647.
See other definitions of like character therein contained.
We therefore conclude that this statute is not violative of either the state or federal Constitutions. The sufficiency of the affidavit was not questioned in the lower court in the demurrer (except as to its constitutionality) or by motion to quash. “ The court of its own motion has considered whether or not a conviction may be sustained upon this affidavit. We think, though there are several charges made in the disjunctive in this affidavit, it relates to but one .transaction; that, though perhaps defectively stated, the defendant was informed of the nature and cause of the accusation made against him, and that he cannot complain after judgment of the court.
If timely objection had been made it would perhaps have been the duty of the state to amend the affidavit by more fully describing the alleged obscene matter which appears to be the'whole or a part of a publication called the Wampus Cat, and to have either set out in full the obscene matter therein, or allege that it was too obscene to be spread upon the records of the court. State v. Zurhorst, 75 Ohio St. 232, 79 N. E. 238, 116 Am. St. Rep., 724, 9 Ann. Cas. 45, and notes. This affidavit was amendable under section 1511 of the Code of 1906 (section 1269, Hemingway’s Code).
“The indictment charges two distinct offenses, but the two counts evidently rest upon one transaction. While the counts are for independent offenses, the offenses do not differ in character or degree, the punishment for each being the same. While it is bad practice to charge different and independent offenses in one indictment, yet we cannot reverse on that account in this case, for the reason that now, looking back through a completed trial, we can see that the appellant was not actually prejudiced by the action of the court in overruling the demurrer to the indictment.”
See, also, Triplett v. State, 80 Miss. 379, 31 So. 743; Brown v. State, 81 Miss. 137, 32 So. 952.
It was proper for the court to enter judgment against the defendant upon his plea of nolo contendere. In 1 Bishop’s New Criminal Procedure, section 802, it is stated that:
“This plea is the defendant’s declaration in court that he will not contend with the prosecuting power. It is pleadable only by leave of court, and in light misdemeanors. The difference between it and guilty appears simply to be that, while the latter is a confession binding the defendant in other proceedings, the former has no effect beyond the particular case. It simply justifies the court in imposing its sentence.”
The judgment of the lower-court is affirmed.
Affirmed.
Dissenting Opinion
(dissenting). I am unable to agree with the conclusion reached in the main opinion. In my opinion section 1025, Hemingway’s Code (section 1292, Code of 1906) can be held constitutional only upon condition that it is expanded by the construction or aided by the common law, and the rule is that, whenever a statute must be en
Section 1025, Hemingway’s Code (section 1292, Code of 1906), reads as follows:
“A person who sells, lends, gives away, or shows, or has in his possession with intent to sell or give away, or to show or advertise, or otherwise offers for loan, gift; sale, or distribution, any obscene or indecent book, writing, paper, picture, drawing, or photograph, or any article or instrument of indecent or immoral use, or who designs, copies, draws, photographs or otherwise prepares such a book, picture, drawing dr other article, or writes or prints, or causes to be written or printed, a' circular, advertisement, or notice of any kind, or gives information orally, stating when, where, how, by whom, or by what means such an indecent or obscene article or thing can be pur-, chased or obtained is guilty of a misdemeanor, and, on conviction, shall be punished by a fine of not over five hundred dollars or imprisonment in the county jail for not more than sis months, or both.”
The affidavit in this case followed the language of the section, and was specifically demurred to because the law upon which it was founded was in conflict with section 26, and also in conflict with the Fourteenth Amendment, In my opinion an indictment in the language used in the present case wholly fails to inform the accused of the accusation against him. The question of due process of law, and what it takes in statutes to constitute due process of law, was passed upon in U. S. v. Cohen Grocery Co., 255 U. S. 81, 41 Sup. Ct. 298, 65 L. Ed. 516, 14 A. L. R. 1045. In that case the court passed upon an act of Congress known as the Lever Act, and the appellee was indicted for a.violation of the act. The court held that the act was in con
“Observe that the section forbids no specific or definite act. It confines the subject-matter of the investigation which it authorizes to no element essentially inhering in the transaction as to which it provides. It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard- against. In fact, we see no reason to doubt the soundness of the observation of the court below, in its opinion, to the effect that, to attempt to enforce the section would be the exact equivalent of an effort to carry out a statute which in terms merely penalized and punished all acts detrimental to the public interest when unjust-and unreasonable in the estimation of the court and jury.”
The court cites a number of cases in support of its holding that the statute must define the offense, and not leave the offense to the judgment of the court and jury. Among the cases so cited with approval is U. S. v. Capital Traction Co., 34 App. D. C. 592, 19 Ann. Cas. 68. In the said case of U. S. v. Traction Co., at page 598 of 34 App. D. C., at page 70 of 19 Ann. Cas., the court in discussing the due process of law element used the following language:
“In a criminal statute the elements constituting the offense must be so clearly stated and defined as to reasonably admit of but one construction. Otherwise there would be lack of uniformity in its enforcement. The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions. A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently
“Penalties cannot be inflicted at the discretion of a jury. Before the citizen can be deprived of his liberty or a corporation of its property by the imposition of fines, the crime must be clearly defined by the lawmaking power. If the Congress has power to declare it a crime for the street railway companies in the District of Columbia to operate cars in a crowded condition, it must, in order to impart validity to the law, declare, with certainty, what constitutes, under the statute, a crowded car. This it has totally failed to do.”
Looking to the common law for the test of obscenity we find in 29 Cyc., p. 1319, the following:
“The test which determines the obscenity or indecency of a publication is .the tendency of the matter to deprave and corrupt the morals of those whose minds are open to such influences, and into whose hands such a publication may fall. The question does not depend upon its being true or false. So a proper test of obscenity in a painting or statue is whether its motive, as indicated by it, is pure or impure, whether it is calculated to excite in > a spectator impure imaginations, and whether the other incidents and qualities, however attractive, are merely accessory to this as the primary or main purpose of the representation.”
In 2 Wharton’s Criminal Law (10th Ed.), section 1432, p. 280, after discussing the subject generally, the author says: “But in all these cases the indictment must aver, and the proof must show, exposure and offense to the community generally; as mere private lewdness or indecency is not indictable as a nuisance at common law.”
The affidavit in the present case nowhere charges that the publication was indecent in the common understanding and acceptation of the public. The statute must be construed so as to make it stand the constitutional test. The person may be made guilty of a crime when his conduct shocks the common decency of the community, but he cannot be held guilty of mere violation of individual idiosyncrasies or prudery. There is a broad field in which individual judgment differs as to what is indecent and what decent. The decency that may be protected by a statute is that which the preponderant majority of minds agree with. Under all reasonable tests the affidavit ought to set forth specific, acts which make out the offense, and not mere conclusions. While the language of the statute is general in its terms, when you come to allege the offense specific acts should be alleged, which facts on their face show a violation of the law. Whether the matter set out in the indictment is obscene or not is a question of law primarily for the court to decide as a matter of law. McNair v. People, 89 Ill. 441; State v. Burwell, 86 Ind. 313; Hummel v. State, 10 Ohio Dec. 492; Abendroth v. State, 34 Tex. Cr. R. 325, 30 S. W. 787; State v. Hanson, 23 Tex. 232. In a case note to State v. Zurhorst, 9 Ann. Cas. at
“But on the other hand it has been held that the obscene language should be set out in haec verba, or that a good excuse should be given for not doing so. State v. Burwell, 86 Ind. 313. In Hummel v. State, 10 Ohio Dec. 492, 8 Ohio N. P. 48, it is held that an averment in an indictment charging the defendant with having used ‘obscene and licentious language’ states a mere conclusion of the pleader; that facts descriptive of the crime should be alleged; and that while it is not necessary to set out the exact words used where it is alleged that the language is ‘unfit for allegation herein,’ enough of the language must be set out to show that a crime has been committed. And in Steuer v. State, 59 Wis. 472, 18 N. W. Rep. 433, wherein the crime charged was the use of abusive and obscene language tending to pfiovoke a breach of the peace, the court stated that the words should have been set out. An indictment is insufficient where the language' charged to have been uttered is not such as to convey licentious or obscene meaning, and there is no averment showing the connection in which the words were uttered or that the words have any local or provincial meaning rendering them obscene; State v. Coffing, 3 Ind. App. 304, 29 N. E. Rep. 615.”'
In Commonwealth v. Wright, 139 Mass. 382, 1 N. E. 411, in discussing proper identification of the matter by means of description in the indictment, it is said:
“While the indecent publication need not be set forth at length, and it is sufficient in the indictment to allege, as an excuse for not doing so, its scandalous and obscene character, it must be identified by some general description which shall show what the paper is which the defendant is charged with publishing. Unless this is done, it is obvious that the defendant is not informed, with such precision as the law requires, of the offense charged against him, nnd may be entirely deceived in regard to the paper
The rule seems generally to be that the general purport and tenor of the language should be set forth or it should be set forth in haec verba. Or it must be alleged in the indictment or affidavit that the matter is too voluminous or too scandalous to be set out in the record of the court. At page 48 of the case note to 9 Ann Cas., at the bottom of the second column and the top of the first column on page 49, the editor says:
“But when it appears that the alleged obscene publication is a book and that it is impracticable to set it out in full, it is not enough to describe the book generally,' where only certain parts are relied upon to sustain the charge. Thus,, in Com. v. McCance, 164 Mass. 162, 41 N. E. Rep. 133, the court said: .‘In the present indictment it cannot be known that the defendant has not been indicted upon evidence relating to certain parts of the book, and convicted upon evidence relating to other parts. . . . Printed words always can be set out according to their tenor. If this is not done because it is alleged that the language is too indecent to be placed on the records of the court, . . . the law requires that the language complained of should be identified by such a description or reference that it may be known that the indictment was found upon the language which is put in evidence and relied on at the trial. If the obscene language complained of appears only in some passages in a book, the rest of which is free from obscenity, the book as a whole should not be presented, but only the book as containing these obscene passages.’ ”
In an analogous statute our own court in Stark v. State, 81 Miss. 397, 33 So. 175, held that, where the indictment did not set out the element of the offense named in the statute, it was void upon its face.
In Walton v. State, 64 Miss. 207, 8 So. 171, which was a prosecution for profanely swearing or cursing in a pub-
It is said in the majority opinion that the affidavit was amendable under section 1269, Hemingway’s Code (section 1511, Code of 1906). The complete ansAver to this is there was no effort to amend it in the-circuit court. Of course, under this section it could have been amended so as to legally and validly charge the offense intended to be denounced by section 1025, Hemingway’s Code. This section is in aid to the state here, and the affidavit was challenged because it did not comply with section - 26 of the Constitution. The publication about-which the appellant was charged and convicted is not attached to the affidavit, nor is it made a part of the record, and the affidavit nowhere states in what particular the publication was obscene or indecent. There was nothing before the court from which the court could judge as to whether or not the language of the publication fell within the condemnation of the statute. The court could not know what the facts were. It could only pronounce judgment upon the legal conclusions charged in the affidavit. No specific passage is referred to or described, and there is nothing save the affidavit upon which the court can pronounce judgment. The appellant has made the publication an exhibit to his brief, but that cannot be considered judicially here. It illustrates, however, an argument against the affidavit because much of the matter in there is free from any objection, and all the matter relied on in argument is susceptible of more than one construction. Under this publication, if we could consider it, one juror might convict for one passage and another for another, and no two men agree upon the same charge of obscenity or the same words relied on to constitute obscenity, while all might, exercising their own individual judgment and test, agree on a common verdict of guilty, which is wholly foreign to any legal idea of judicial proceeding and due process of law.