Opinion
No. 36945
Decided January 17, 1962.
Criminal law — Statutory construction — Statute may be valid as applied to one set of facts — And invalid as to another — Section 2905.34, Revised Code — Making possession knowingly of obscene material a crime — Constitutionally applied, when.
1. A statute may be valid as applied to one set of facts and invalid as applied to another.
2. Section 2905.34, Revised Code, providing, inter alia, that no person shall knowingly have in his possession or under his control an obscene, lewd or lascivious book, print or picture, operates constitutionally when applied to a situation where the evidence shows that the defendant, indicted under such statute, owned a stored automobile trailer, locked with chains and padlocks and containing a large quantity of packaged duplicate pornographic material of the vilest kind; that he visited the place where the trailer was stored on a number of occasions during the year prior to his arrest; that he was seen leaving the storage place with a package resembling those found in the trailer; and that when apprehended he had in his possession keys fitting the padlocks. Upon such evidence, a conviction and sentence under the statute are valid.
CERTIFIED by the Court of Appeals for Wyandot County.
Edward J. Wetzel, the appellee herein, was indicted by the Grand Jury of Wyandot County in the following language:
"The jurors of the Grand Jury * * * do find and present that Edward J. Wetzel * * * on the 8th day of February * * * 1960, at the county of Wyandot aforesaid, did unlawfully and knowingly have in his possession and under his control, obscene, lewd and lascivious picture photographs, pamphlets and other articles all of an indecent and immoral nature and all of which are too obscene for further description within the limits of decency and contrary to Section 2905.34 of the Revised Code of Ohio, and against the peace and dignity of the state of Ohio."
He pleaded not guilty and was tried before the Court of Common Pleas. A verdict of guilty was returned by the jury, and the defendant was sentenced to imprisonment in the Ohio Penitentiary.
An appeal on questions of law to the Court of Appeals re-resulted in a reversal of the judgment below and an order directing the discharge of the defendant. Such reversal was based on the determination that the part of Section 2905.34, Revised Code, under which the defendant was indicted and tried, is unconstitutional and void, being in violation of "Article I, Section 11 of the Constitution of Ohio and the provisions of the First Amendment to the Constitution of the United States."
The judges of the Court of Appeals, finding the judgment rendered to be in conflict with the judgment of the Court of Appeals for Cuyahoga County in the case of State v. Mapp (March 31, 1959), certified the record to this court for review and determination.
Mr. Forrest H. Bacon, prosecuting attorney, for appellant.
Mr. Francis M. Marley, for appellee.
Section 2905.34, Revised Code, in its pertinent parts reads as follows:
"No person shall knowingly * * * have in his possession or under his control an obscene, lewd, or lascivious book * * * print [or] picture * * *.
"Whoever violates this section shall be fined not less than two hundred nor more than two thousand dollars or imprisoned not less than one nor more than seven years, or both."
On the trial, evidence presented by the state showed that on February 8, 1960, pursuant to a telephone call, the sheriff of Wyandot County went to a farm owned by the defendant's mother-in-law and located on a county road in Wyandot County some two and one-half to three miles west of the city of Carey. There, in a small barn on the premises, the sheriff found a chained and padlocked automobile trailer belonging to the defendant and admittedly placed there by him. The sheriff cut the chains, opened the trailer and discovered over 19,000 packaged duplicate items wrapped in brown paper sacks and consisting of illustrated pamphlets, photographs and reproductions of photographs and pen-and-ink drawings accompanied by reading matter, most of which material was of the lewdest and most lascivious character — an assorted collection of filth, shocking and repugnant to the average normal individual of any locality; in short, pornography at its very worst.
On the following day, the defendant was apprehended and charged with the crime defined in Section 2905.34, Revised Code. There were found in his possession keys which fitted the padlocks fastening the chains on the trailer.
Witnesses who lived nearby testified that to their knowledge defendant visited the part of the barn in which the trailer was housed some seven or ten times between November of 1958, when the trailer was placed in the barn, and February of 1960 and remained for periods of from ten to fifteen minutes to an hour. On one occasion, one of the witnesses observed the defendant carrying from the barn a brown colored package resembling and about the size of a shoe box. The defendant told the witness that, upon request, he occasionally sold material contained in the trailer.
In his own defense, defendant testified that he had not placed the chains and padlocks on the trailer and was unaware of the trailer's contents. He said that he had leased the trailer to another, with the privilege of purchase, and that he, defendant, visited it solely to see whether it was intact and unmolested. Defendant testified further that he secured the keys to the padlocks from the one to whom he had leased the trailer, and that such person was then serving a term in the Ohio Penitentiary.
The only other witness appearing for the defendant was a medical doctor who was treating the defendant professionally. He testified as to defendant's poor physical condition due to a heart ailment, hardening of the arteries and other disorders of internal organs. He said further that the defendant was incapable of strenuous physical activity.
It is a well established principle of law that a statute, under one application, may operate unconstitutionally, but, under another and different application, its operation may be perfectly valid. Such was the pronouncement of the Supreme Court of the United States in the cases of Dahnke-Walker Milling Co. v. Bondurant, 257 U.S. 282, 66 L.Ed., 239, 42 S.Ct., 106, second syllabus; and Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 462, 89 L.Ed., 1725, 1735, 65 S.Ct., 1384, 1390. Or, as was held by this court in the first paragraph of the syllabus of State, ex rel. Herbert, v. Ferguson, Aud., 142 Ohio St. 496, 52 N.E.2d 980, "where, under one state of facts, the operation of a statute is constitutional, a court will not declare it invalid because under another state of facts, not involved, its operation would be unconstitutional."
To the same effect, see State, ex rel. Speeth et al., Board of County Commrs., v. Carney, Aud., 163 Ohio St. 159, 126 N.E.2d 449.
Here, under the state's evidence, the deduction is warranted that this large quantity of pornographic material was possessed by defendant with knowledge of its nature, and that it was held for sale and distribution. The situation differs from one where an individual merely possesses material of that kind for his own private purposes.
Therefore, we think the quoted portions of the statute are constitutional and valid as applied to the defendant under the evidence outlined above.
The instant case is unlike that of Smith v. California, 361 U.S. 147, 4 L.Ed. (2d), 205, 80 S.Ct., 215. That case involved an ordinance of the city of Los Angeles making it unlawful for any person to have in his possession any obscene or indecent book in any place where books are sold or kept for sale. The court construed the ordinance as fixing strict or absolute criminal liability, without requiring any element of scienter, i.e., knowledge by the defendant bookseller of the contents of the book for the possession of which he was convicted. The majority of the court held that that ordinance, although directed to obscene matter, violated the constitutionally protected rights of freedom of speech and of the press, because it lacked the element of scienter on the part of the bookseller.
Surely the state in the exercise of its sovereign power may enact and enforce legislation designed to protect its people, particularly the young, inexperienced and unsophisticated, from the corrupting and degrading influence of what is plain unmitigated filth.
We are not confronted here with an illegal search and seizure in violation of defendant's constitutional rights. No objection was made by defendant in the trial court to the introduction of the pornographic material taken from the trailer on that ground, and that there may have been an illegal search and seizure was mentioned only casually in the Court of Appeals. State v. Mapp (U.S.), 6 L.Ed. (2d), 1081, 81 S.Ct., 1684.
The judgment of the Court of Appeals is reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
RADCLIFF, MATTHIAS, BELL and O'NEILL, JJ., concur.
TAFT, J., dissents for the reason stated in the majority opinion in State v. Mapp (1960), 170 Ohio St. 427, 433, 166 N.E.2d 387, and in the concurring opinion in State v. Jacobellis, 173 Ohio St. 22 at page 29.
HERBERT, J., dissents for the reason stated in the opinion in the case of State v. Mapp, 170 Ohio St. 427, 166 N.E.2d 387.
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.
The authorities cited in the majority opinion herein clearly support the proposition stated in the first paragraph of the syllabus to the effect that, under one application, a statute may operate unconstitutionally yet, under another and different application, may operate validly.
Possession of nearly 20,000 copies of pamphlets, photographs and drawings which, to give them their most charitable description, can only be designated as hard-core pornography could be for one purpose and one purpose only — dissemination for profit. The intent of the Legislature in enacting Section 2905.34, Revised Code, must have been to prevent such dissemination or some other equally pernicious guilty purpose; it can not be assumed that the Legislature intended a deliberate invasion of personal freedoms.
Such an intent is a far cry from intending to make guilty under this statute a person who has in his personal library an isolated example of what mighty by many, or even by a few, be termed obscene. It is a far cry from intending to make guilty a clerk of courts who accepts for filing an exhibit or a judge or juror who later examines such exhibit, knowing or believing it to be obscene. All would be equally guilty if we assume that the Legislature intended that no guilty purpose need accompany the knowingly possessing.
In drawing a line between concepts as basic as personal freedom and the police power, a fine-pointed pen is often required. But fine or broad, the line must be drawn with reason. If, by judicial interpretation, that line can, with reason, be drawn so as to accomplish the purpose sought by the exercise of the police power and at the same time protect the freedom of the individual, it should be so drawn.
The interpretation given this statute herein, and in the majority opinion in State v. Jacobellis, 173 Ohio St. 22, is, in my opinion, the only reasonable interpretation that can be given it. If, by implying the elements of guilty knowledge and guilty purpose, the salutary effect that it may be hoped the statute will have on our society can be given impetus, then that implication should be made. To interpret it, on the other hand, in such a way as to make mere knowingly possessing unlawful without either guilty knowledge or purpose accompanying that possession would, of necessity, make its application unconstitutional as the majority of this court felt was the result of such application in State v. Mapp, 170 Ohio St. 427.