Opinion
No. 36964
Decided January 17, 1962.
Criminal law — Possession of obscene motion picture film a misdemeanor — Scienter not element of offense — Section 2905.342, Revised Code, unconstitutional.
APPEAL from the Court of Appeals for Montgomery County.
The defendant, as manager of a theatre in the city of Dayton, gave a public showing of a film titled "The Lovers." Because of such showing of the film, an affidavit was filed in the Dayton Municipal Court charging that defendant did "unlawfully exhibit, or have in his possession, or under his immediate control an obscene motion picture film contrary to Section 2905.342 of the Ohio Revised Code and against the peace and dignity of the state of Ohio."
Section 2905.342, Revised Code, reads in part:
"No person shall produce, sell, lease, lend, give away, or distribute for the purpose of exhibition, or exhibit, or have in his possession or under his immediate control for any purpose:
"(A) An obscene motion picture film; or
"* * *
"Whoever violates this section shall be fined not more than five thousand dollars, or imprisoned not more than six months, or both."
Defendant entered a plea of not guilty and was tried to a jury in the Dayton Municipal Court, found guilty as charged in the affidavit, sentenced to imprisonment in the workhouse of the city of Dayton and ordered to pay a fine and costs of the prosecution.
The Court of Appeals, on appeal from the Municipal Court, affirmed the judgment.
The allowance of a motion to certify the record brings the cause to this court for review.
Mr. Arthur O. Fisher, city prosecutor, Mr. Henry W. Phillips and Mr. Edward J. Duffy, Jr., for appellee.
Messrs. Wright, Harlor, Morris, Arnold Glander, for appellant.
Section 2905.342, Revised Code, making it a misdemeanor to have in one's possession an obscene motion picture film, without reference to knowledge or scienter on the part of an accused, is unconstitutional. City of Cincinnati v. Marshall, 172 Ohio St. 280; Smith v. California, 361 U.S. 147.
The judgment of the Court of Appeals is reversed.
Judgment reversed.
ZIMMERMAN, acting C.J., RADCLIFF, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.
ZIMMERMAN, J., sitting in the place and stead of WEYGANDT, C.J.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of ZIMMERMAN, J.