175 N.E.2d 123 (Ohio App. 8 Dist. 1961), State v. Jacobellis

Citation:175 N.E.2d 123, 115 Ohio App. 226
Opinion Judge:Per Curiam.
Party Name:STATE of Ohio, Plaintiff-Appellee, v. Nico JACOBELLIS, Defendant-Appellant.
Attorney:John T. Corrigan, Pros. Atty., Thomas L. Osborne and Bernard Stuplinsky, Asst. Pros. Attys., Cleveland, for plaintiff-appellee., Rocker, Zaller, Kleinman & Annan, Seymour Terrell, Cleveland, for defendant-appellant. Mr. John T. Corrigan, prosecuting attorney, Mr. Thomas L. Osborne and Mr. Bernar...
Judge Panel:KOVACHY, P. J., and SKEEL and HURD, JJ., concur.
Case Date:May 25, 1961
Court:Court of Appeals of Ohio

Page 123

175 N.E.2d 123 (Ohio App. 8 Dist. 1961)

115 Ohio App. 226

STATE of Ohio, Plaintiff-Appellee,

v.

Nico JACOBELLIS, Defendant-Appellant.

Court of Appeals of Ohio, Eighth District, Cuyahoga.

May 25, 1961

[115 Ohio App. 227] John T. Corrigan, Pros. Atty., Thomas L. Osborne and Bernard Stuplinsky, Asst. Pros. Attys., Cleveland, for plaintiff-appellee.

Rocker, Zaller, Kleinman & Annan, Seymour Terrell, Cleveland, for defendant-appellant.

PER CURIAM

This is an appeal on questions of law from a judgment arising from a decision rendered by the Court of Common Pleas of Cuyahoga County (Criminal Division) finding the defendant guilty as charged on two counts of an indictment as follows:

'(1) Unlawfully and knowingly had in his possession and under his control a certain obscene, Lewd, and lascivious motion picture film, to-wit: 'Les Amants' (or, The Lovers), and:

'(2) Unlawfully and knowingly exhibited a certain obscene, lewd, and lascivious motion picture film, to-wit:

'Les Amants' (or, The Lovers.)'

The defendant elected to be tried before a court of three judges pursuant to Section 2945.07, Revised Code. Waiver of trial by jury was made in open court, in writing, signed by the defendant, pursuant to the provision of Section 2945.05, Revised Code. The trial was commenced on May 23, 1960 and concluded on June 3, 1960.

Section 2905.34, Revised Code, under which the defendant was convicted, insofar as pertinent, reads as follows:

Page 124

'No person shall knowingly sell, lend, give away, exhibit, or offer to sell, lend, give away or exhibit, or publish, or have in his possession or under his control, an obscene, [115 Ohio App. 228] lewd or lascivious book, pamphlet, paper, magazine, writing, advertisement, circular, print, picture, photograph, motion picture film * * *.'

The defendant-appellant complains of many assignments of error, one of which is that he was erroneously charged and found guilty of two separate crimes under Section 2905.34, Revised Code, in that the first count charged the defendant with knowingly having possession and control of a certain obscene, lewd and lascivious motion picture film, to wit: 'Les Amants', and the second court with unlawfully and knowingly exhibiting this same motion picture film. This assignment of error cannot be sustained.

This precise question was before the Montgomery County Court of Appeals, where defendant was found guilty by a jury on two charges, namely, (1) possessing and (2) exhibiting an obscene motion picture film 'The Lovers', see opinion by Kerns, J., in State vs. Warth, (No. 2576) decided July 7, 1960. Appeal as of right to the Supreme Court dismissed sua sponte for reason no debatable constitutional question involved. State v. Warth, 172 Ohio St. 246, 175 N.E.2d 84, decided May 3, 1961. While the conviction in the Warth case was for violation of Section 2905.342, Revised Code, nevertheless, the legal principles involved are identical as applied to the facts of the instant case.

Also, this same question was before this court where one, Gevaras, was convicted in the Court of Common Pleas of this County on two counts of one indictment 1) of knowingly possessing and the other of knowingly exhibiting the same 'obscene, lewd, or obscene motion picture film' under the provisions of Section 2905.34, Revised Code. On appeal on questions of law, this court affirmed the judgment of the Court of Common Pleas. Thereafter, the Supreme Court of Ohio dismissed the appeal as of right for the reason that 'no debatable constitutional question' was involved. State v. Gevaras, 1960, 170 Ohio St. 404, 165 N.E.2d 652.

The remaining assignments of error are grounded principally upon the claim of the defendant...

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