State v. Jacobellis

Decision Date17 January 1962
Docket NumberNo. 37200,37200
Citation18 O.O.2d 207,173 Ohio St. 22,179 N.E.2d 777
Parties, 18 O.O.2d 207 The STATE of Ohio, Appellee, v. JACOBELLIS, Appellant.
CourtOhio Supreme Court

Syllabus by the Court

1. Section 2905.34, Revised Code, relating to obscenity is a valid exercise of the police power of the state of Ohio and was enacted for the protection of its citizens, and a proper conviction for a violation thereof will be sustained.

2. The words, knowingly possess, as used in Section 2905.34, Revised Code, include 'scienter' (guilty knowledge) and 'mens rea' (guilty purpose), both of which must be established by proper evidence to sustain a conviction for violation of such section.

3. The courts must apply a rule of reason in construing and applying the criminal statutes of this state to the facts in each case.

Defendant was indicted on two counts by the September 1959 Grand Jury of Cuyahoga County, Ohio, for violation of Section 2905.34, Revised Code. The first count in the indictment reads as follows:

'* * * on or about the 13th day of November 1959, at the county aforesaid, unlawfully and knowingly had in his possession and under his control a certain obscene, lewd and lascivious motion picture film, to wit:

'(Les Amants) 'The Lovers'

'Said motion picture film being so indecent and immoral in its nature that the same would be offensive to the court and improper to be placed upon the records thereof * * * and against the peace and dignity of the state of Ohio.'

The second count in the indictment reads:

'* * * on or about the 13th day of November 1959, at the county aforesaid, unlawfully and knowingly exhibited a certain obscene, lewd and lascivious motion picture film, to wit:

'(Les Amants) 'The Lovers' 'Said motion picture film being so indecent and immoral in its nature that the same would be offensive to the court, and improper proper to be placed upon the records thereof * * * and against the peace and dignity of the state of Ohio.'

Section 2905.34, Revised Code, so far as it pertains to the defendant and his conduct on November 13, 1959, reads as follows:

'No person shall knowingly * * * exhibit * * * or have in his possession or under his control an obscene, lewd, or lascivious * * * motion picture film * * *.

'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.' (Emphasis added.)

Upon arraignment the defendant entered pleas of not guilty to both counts of the indictment on November 30, 1959, and was released on bond.

On May 23, 1960, the defendant waived his right to trial by jury, both orally and in writing, and requested trial by a three-judge court. He was permitted to withdraw his pleas to make certain motions; thereafter the pleas of not guilty were reentered and trial was had, resulting in a finding of guilty as charged in each count of the indictment.

The defendant was sentenced to pay a fine in the sum of $500 on the first count of the indictment and sentenced to pay a fine of $2,000 on the second count of the indictment and to stand committed to the workhouse of the city of Cleveland until such fine and costs were paid. Sentence was stayed pending appeal.

On appeal to the Court of Appeals, that judgment was affirmed.

The cause is before this court pursuant to a certification of the record, the Court of Appeals finding its judgment to be in conflict with the judgment of the Court of Appeals of the Third Appellate District in the case of State v. Wetzel, decided December 10, 1960.

Bennett Kleinman, Cleveland, for appellant.

John T. Corrigan, Pros. Atty., Thomas L. Osborne and Bernard J. Stuplinski, Cleveland, for appellee.

RADCLIFF, J.

At the outset it is well to recall than an opinion of this court does not necessarily reflect the thinking and logic, if any, of any member of the court other than the author. It is the means by which the author of an opinion, in this case the writer, illustrates the path followed to reach a conclusion which, if concurred in by a majority of my distinguished colleagues (this term is used in all humility as my status as such is only temporary), is stated in the syllabus as the law of the case.

The defendant urges five assignments of error, the first two raising the constitutional issues involved. The third and fourth emphasize facts and the weight of the evidence, which we shall dispose of in the perfunctory manner, as the law requires of this court, in a short paragraph later in this opinion. The final assignment of error raises the question of general prejudice.

There is an oft-quoted cliche to the effect that 'it is not possible to legislate in the field of morals.' The statement originally was and still should be, 'it is not possible to legislate morality for the people.' In support of this, there is always cited the classic example of the Eighteenth Amendment to the United States Constitution. We sorrowfully agree that this is true, but the impossibility of accomplishing that which is good for all the people should not and must not be used as an excuse for failing to try. History is replete with examples of nations that lost positions of eminence in the world and whose citizens lost their freedom due to decay of their moral fiber resulting in degeneracy and depravity. Legislative bodies must continue to pass laws which attempt to protect the morality of the people from themselves and from their own weaknesses. When such laws are rejected it should be by those governed, either by repudiating their legislators, by failing to reelect or by direct referendum. It is infelicitous for the judicial branch of the government to seek for constitutional infirmities which enable courts to thwart the actions of that segment of government closest to the governed and directly responsive and responsible thereto. By its very nature, the judiciary is farthest from the people because of the length of tenure or mode of selection, consequently its authority must be exercised with deliberate caution. Lex citius tolerare vult privatum damnum quam publicum malum.

We turn now to a consideration of the provisions of Section 2905.34, Revised Code, in relation to the various pronouncements of the Supreme Court of the United States in interpreting such statutes. The pertinent part of Section 2905.34, Revised Code, with which we are presently concerned, reads as follows:

'No person shall knowingly sell, lend, give away, exhibit, or offer to sell, lend, give away, or exhibit, or publish or offer to publish or have in his possession or under his control an obscene * * * motion picture film * * *.' (Emphasis added.)

At the outset it must be noted that the Supreme Court of the United States has held that obscenity is not protected by the constitutional provisions relating to freedom of speech. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.E.2d 1498.

In Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, however, the Supreme Court struck down a state statute which imposed strict criminal liability for the mere possession for sale of an obscene book, without reruiring any knowledge of the contents of the book. The case reserved, however, the question as to the extent of knowledge required which would validate such a statute.

Such infirmity does not exist in the statute under our consideration. It is specifically required under Section 2905.34, Revised Code, that the acts punished thereunder shall be done knowingly. The act requires knowledge. The question, of course, is knowledge of what. It is apparent that such knowledge must necessarily relate to knowledge of the obscenity of the contents of the publication involved.

Two questions must be determined at this time. First, the test as to what is obscene. The definition which has now become classic was laid down in Roth v. United States, supra, as follows, at page 489 of 354 U.S., at page 1311 of 77 S.Ct.:

'* * * whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.'

Thus it is to be seen that the test for obscenity is not subjective but objective. It is not to be judged by what any single individual deems is obscene to himself, but rather what the community as a whole would consider obscene. There is no real or actual ambiguity in the phrase. No undue burden is placed on the possessor of such literature, for even though the individual himself might not consider the subject matter obscene, it is indeed the isolated and uninformed person who would not know as a matter of fact what is obscene by the usual community standards, and as stated in Roth v. United States, supra, at pages 491 and 492 of 354 U.S., at pages 1312 and 1313 of 77 S.Ct.:

'Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of the due process. '* * * [T]he Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices * * *.' United States v. Petrillo, 332 U.S. 1, 7-8 [67 S.Ct. 1538, 1542, 91 L.Ed. 1877]. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark '* * * boundaries sufficiently distinct for judges and juries fairly to administer the law * * *. That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense * * *.''

The second question which arises is as to what extent a person is bound to have knowledge of the contents of that which he p...

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  • Stanley v. Georgia
    • United States
    • U.S. Supreme Court
    • 7 de abril de 1969
    ...the Ohio statute to require proof of 'possession and control for the purpose of circulation or exhibition.' State v. Jacobellis, 173 Ohio St. 22, 27—28, 179 N.E.2d 777, 781 (1962), rev'd on other grounds, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964). The interpretation was designed to......
  • Jacobellis v. State of Ohio
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    • 22 de junho de 1964
    ...by jury, was affirmed by an intermediate appellate court, 115 Ohio App. 226, 175 N.E.2d 123, and by the Supreme Court of Ohio, 173 Ohio St. 22, 179 N.E.2d 777. We noted probable jurisdiction of the appeal, 371 U.S. 808, 83 S.Ct. 28, 9 L.Ed.2d 52, and subsequently restored the case to the ca......
  • City of Youngstown v. DeLoreto
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    ...lewd, or lascivious' publications, and has been upheld 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 hel......
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