State v. Sul

• Decision Date: 24 December 1958
• Citation: 146 Conn. 78,147 A.2d 686
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Stanley L. SUL. Supreme Court of Errors of Connecticut

Page 686

147 A.2d 686

146 Conn. 78

STATE of Connecticut v. Stanley L. SUL.

Supreme Court of Errors of Connecticut.

Dec. 24, 1958.

Robert B. Seidman, Norwalk, with whom was Sidney Vogel, Norwalk, for appellant (defendant).

Lorin W. Willis, State's Atty., Bridgeport, with whom, on the brief, was Otto J. Saur, Asst. State's Atty., Bridgeport, for appellee (state).

DALY, C. J., BALDWIN, KING, MURPHY and MELLITZ, JJ., concurring.

BALDWIN, Associate Justice.

The information, in four counts, charged that the defendant had violated § 8567 of [146 Conn. 80] the General Statutes ¹ in that on four different days he 'did have in his possession with intent to sell, offer and show certain booklets containing obscene and indecent language and also obscene and indecent pictures, against the peace and contrary to the form of the statute.' The defendant demurred, alleging that the statute violated constitutional guarantees of freedom of speech and of the press as those may be included among the liberties protected from state action by the fourteenth amendment to the federal constitution. The trial court overruled the demurrer, and the defendant entered a plea of not guilty and elected to be tried to the court without a jury. General Statutes, Cum.Sup.1955, § 3326d. The state withdrew two of the four counts. After a full hearing, the trial court found the defendant guilty. He has appealed from this judgment, assigning error only in the ruling on the demurrer.

The constitutionality of a statute upon which a criminal prosecution is based can be raised by demurrer. State v. McKee, 73 Conn. 18, 24, 46 A. 409, 49 L.R.A. 542; 4 Wharton, Criminal Law & Procedure, § 1872. The accused may plead over after a demurrer has been overruled. General Statutes § 8803; 4 Wharton, op. cit., p. 731. He does not thereby waive the right to have the ruling upon demurrer reviewed on appeal. Hunter's Appeal, 71 Conn. 189, 199, 41 A. 557; West v. H. J. Lewis Oyster Co., 99 Conn. 55, 67, 121 A. 462; 4 Wharton, op. cit., p. 731. He may raise constitutional questions again upon the subsequent trial on the merits. 41 Am.Jur. 472, § 255. However, when the ruling upon a demurrer is followed by an answer or by a plea of not guilty, as in the case at bar, the ruling is reviewed on appeal with reference to all the proceedings following the plea. State v. Hayes, 127 Conn. 543, 582, 18 A.2d 895; State v. Pashall, 118 Conn. 645, 650, 174 A. 175; Wood v. Connecticut Savings Bank, 87 Conn. 341, 349, 87 A. 983; Scott v. Scott, 83 Conn. 634, 636, 78 A. 314; Mechanics' Bank v. Woodward, 74 Conn. 689, 691, 51 A. 1084; Maltbie, Conn.App.Proc., §§ 65, 66.

A statute may operate in a manner consistent with constitutional requirements when applied to one set of circumstances, although as to another it may produce a result which makes its operation unconstitutional. Len-Lew Realty Co. v. Falsey, 141 Conn. 524, 530, 107 A.2d 403; Corthouts v. Town of Newington, 140 Conn. 284, 288, 99 A.2d 112, 38 A.L.R.2d 1136. Put another way, the constitutional validity of a statute must be tested by its effect on the one who challenges it under the particular circumstances of his case and not under some other and different circumstances. United Public Workers of America v. Mitchell, 330 U.S. 75, 90, 67 S.Ct. 556, 91 L.Ed. 754; Fleming v. Rhodes, 331 U.S. 100, 104, 67 S.Ct. 1140, 91 L.Ed. 1368; Pierce v. Albanese, 144 Conn. 241, 251, 129 A.2d 606; State v. Sinchuk, 96 Conn. 605, 615, 115 A. 33, 20 A.L.R. 1515.

After the demurrer of the defendant was overruled and he had entered a plea of not guilty, the case was tried upon its merits to the court without a jury. Under our rules, which are applicable to the trial of criminal as well as civil cases, if counsel intends to raise questions of law which may be subject to appeal, he must state them in his argument. Such questions must be presented in writing, also, as claims of law, unless the exigencies of the case render this impracticable. Practice Book, §§ 154, 327. Further, there are other occasions during the actual development of the evidence upon a trial when questions of law can be raised for presentation on appeal. In the instant case, the defendant has chosen to come before us on a record made to present a single assignment of error, to wit, the overruling of his demurrer. He makes no claim of any error during the actual trial either as to the manner in which the trial court construed § 8567 with reference to the evidence adduced in order to reach a conclusion of guilt or in any other respect. There is no finding of facts, nor were there any claims of law. The record includes neither the booklets which were alleged to contain obscene or indecent language or pictures nor any of the verbal testimony or other evidence. It may well be that the language and pictures contained in the booklets were patently obscene and that it was obvious from all the circumstances that the defendant knew that they were. It it true that constitutional questions may be raised upon a demurrer. It is also true that when a demurrer is overruled and the defendant pleads over and goes to trial on the merits, these questions may not present any reversible error when reviewed in the light of the facts found by the trial court from evidence properly received under the pleadings and in the light of the application of the law to those facts. State v. Hayes, 127 Conn. 543, 582, 18 A.2d 895; State v. Pashall, 118 Conn. 645, 650, 174 A. 175; Hartwell v. Town of Watertown, 123 Conn. 657, 660, 197 A. 755; West v. H. J. Lewis Oyster Co., 99 Conn. 55, 69, 121 A. 462.

The trial judge was not bound by the previous ruling on the demurrer. Albrecht v. Rubinstein, 135 Conn. 243, 247, 63 A.2d 158, 7 A.L.R.2d 1022. This principle has particular significance in the instant case, since, owing to our circuit system, the judge who ruled upon the demurrer did not try the case on the merits. Upon the overruling of his demurrer, the defendant could have refused to plead over, let judgment enter, appealed from the judgment and raised the questions of law which he now presents. Instead, he has appealed from the judgment entered after trial, but he assigns no error in the trial. Where there has been a trial on the merits, this court should have the opportunity of reviewing the questions of constitutionality upon the facts established at the trial. '[O]nly an adjudication on the merits can provide the concrete factual setting that sharpens the deliberative process especially demanded for constitutional decision.' United States v. International Union, etc., 352 U.S. 567, 591, 77 S.Ct. 529, 541, 1 L.Ed.2d 563. If this was not a criminal conviction under a statute defining a serious crime and imposing a substantial penalty, we would be constrained to rule that the defendant, by entering a plea of not guilty after his demurrer was overruled and proceeding to a trial during which he invoked no rulings on questions on the constitutionality of the statute to furnish bases for assignments of error on appeal, is precluded from pursuing on this appeal any error claimed in the overruling of his demurrer. State v. Hayes, supra; Maltbie, Conn.App.Proc. §§ 65, 66; see Kelly v. City of Waterbury, 96 Conn. 494, 496, 114 A. 530; Harrison v. Harrison, 96 Conn. 568, 571, 114 A. 681. The construction of § 8567, however, involves a matter of public interest and importance because of recent decisions of the Supreme Court of the United States involving statutes of other jurisdictions similar to it. Consequently, we shall pass upon the constitutional questions raised from the point of view of the information upon which the defendant was found guilty.

Laws to prevent the circulation of publications containing obscene language or pictures have been upon the statute books of this state for many years. ² Section 8567 was enacted in substantially its present form in 1895. Public Acts 1895, c. 205, § 1. In State v. McKee, 73 Conn. 18, 27, 46 A. 409, 413, 49 L.R.A. 542, we held constitutional § 2 of that act, which made punishable by fine and imprisonment the sale, or possession with intent to sell, of any paper 'devoted to the publication, or principally made up of criminal news, police reports, or pictures, and stories of deeds of bloodshed, lust, or crime.' This provision, which remained substantially unchanged until 1935, was repealed in that year. Rev.1902, § 1326; Rev.1918, § 6398; Rev.1930, § 6245; Cum.Sup.1935, § 1700c. It is to be noted that § 8755 of the General Statutes exempts medical textbooks or any other purely medical literature, publication or advertisement from the operations of § 8567. This court has not had occasion until now to pass upon the constitutional validity of § 8567.

Obscenity is not protected by the unconditional language of the first amendment to the federal constitution. Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498. The primary requirements of decency may be enforced against obscene publications. Kingsley Books, Inc. v. Brown, 354 U.S. 436, 440, 77 S.Ct. 1325, 1 L.Ed.2d 1469; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031. The same holds true of article first, § 6, of the constitution of Connecticut. In construing § 8567, the first question is where to draw the line between what is obscene and therefore violative of the statute and what is licit and therefore entitled to the protection afforded by the constitution. Section 8567 makes illegal, among other things, 'possession with intent to sell, * * * offer or show, any book * * * containing obscene, indecent or impure language, or any picture * * * of like character.' The information follows this precise language almost to the letter. Section 8567 contemplates a publication, such as a book or pamphlet, which, considered as a whole, has a predominant appeal to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and goes...