State v. Wetzel, 36945

Citation179 N.E.2d 773,173 Ohio St. 16
Decision Date17 January 1962
Docket NumberNo. 36945,36945
Parties, 18 O.O.2d 203 The STATE of Ohio, Appellant, v. WETZEL, Appellee.
CourtUnited States State Supreme Court of Ohio

Syllabus by the Court

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 bile 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.

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 [179 N.E.2d 774] * * * 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 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 'Articles 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.

Forrest H. Bacon, prosecuting attorney, Upper Sandusky, for appellant.

Francis M. Marley, Fostoria, for appellee.

ZIMMERMAN, Acting Chief Justice.

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, 42 S.Ct. 106, 66 L.Ed. 239, second headnote; and Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 462, 65 S.Ct. 1384, 1390, 89 L.Ed. 1725, 1735. Or, as was held by this court in the first paragraph of the syllabus of State ex rel. Herbert v. Ferguson, Aud., 142...

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12 cases
  • City of Youngstown v. DeLoreto
    • United States
    • Ohio Court of Appeals
    • September 10, 1969
    ...as a valid exercise of the police power of the state of Ohio. State v. Jacobellis, 173 Ohio St. 22, 179 N.E.2d 777; State v. Wetzel, 173 Ohio St. 16, 179 N.E.2d 773. See, also, State v. Mazes, 7 Ohio St.2d 136, 218 N.E.2d 725, which held that the book 'Orgy Club' was In New American Library......
  • City of Cincinnati v. Hoffman
    • United States
    • Ohio Supreme Court
    • July 19, 1972
    ...U.S. 450, 65 S.Ct. 1384, 89 L.Ed. 1725; State, ex rel. Herbert, v. Ferguson (1944), 142 Ohio St. 496, 52 N.E.2d 980; State v. Wetzel (1962), 173 Ohio St. 16, 179 N.E.2d 773. In State ex rel. Herbert v. Ferguson, it was held that, 'Where, under one state of facts, the operation of a statute ......
  • Klor, In re
    • United States
    • California Supreme Court
    • July 7, 1966
    ...and personal gratification; the statute proscribes possession Only with the purpose of circulating the material. (State v. Wetzel (1962) 173 Ohio St. 16, 179 N.E.2d 773; State v. Coleman (Ohio Cty.Ct.1963) 193 N.E.2d 198.)4 We said in Zeitlin v. Arnebergh (1963) 59 Cal.2d 901, 923, 31 Cal.R......
  • Charles Galayda v. Lake Hospital System, Inc. [appeal by Armando B. Damian, M.D. and Damian Clinic, Inc.]
    • United States
    • Ohio Court of Appeals
    • September 30, 1993
    ... ... Galayda's stomach in the amount of 5,000 ccs or 50% of ... the total circulating volume of blood in a normal state ... Since Galayda was not in a normal state, Dr. Eckhauser ... explained that some of the contents removed from his stomach ... the constitutional statute operated unconstitutionally in ... this case, State v. Wetzel (1962), 173 Ohio ... St. 16, by violating appellants' right to jury trial ... because there was a good faith defense ... ...
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