State v. Jacobellis

• Decision Date: 25 May 1961
• Citation: 115 Ohio App. 226,175 N.E.2d 123
• Parties: , 86 Ohio Law Abs. 385, 20 O.O.2d 308 STATE of Ohio, Plaintiff-Appellee, v. Nico JACOBELLIS, Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 226

115 Ohio App. 226

175 N.E.2d 123, 86 Ohio Law Abs. 385, 20 O.O.2d 308

STATE of Ohio, Plaintiff-Appellee, v. Nico JACOBELLIS, Defendant-Appellant.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

May 25, 1961.

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:

'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 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 that the provisions of the statute, namely, Section 2905.34, Revised Code, are violative of the constitutional rights of the defendant and are, therefore, null and void.

The defendant contends that the moving picture film in this case is not obscene and that it is within the area of constitutionally protected freedom of speech or press.

This contention of the defendant cannot be sustained. As to the question of obscenity, the three judge trial court, after a lengthy trial, based upon the testimony of numerous witnesses, the viewing of the film and all the evidence, found the moving picture film in question to be obscene, lewd and lascivious within the definition, description and test set forth in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.

In negating the claim that obscenity is within the area of constitutionally protected freedom of speech or press, the Supreme Court of the United States in paragraph three of the syllabus of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, which was considered and decided June 24, 1957, together with the case of People v. Alberts, 138 Cal.App.2d Supp. 909, 292 P.2d 90, on appeal from the Superior Court of California, Los Angeles County, held, inter alia, as follows:

'Obscenity is not within the area of constitutionally protected freedom of speech or press--either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the states.'

And, in syllabus four (c) of the Roth case, supra, it is stated:

'The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant...