179 N.E.2d 777 (Ohio 1962), 37200, State v. Jacobellis

Docket Nº:37200.
Citation:179 N.E.2d 777, 173 Ohio St. 22
Opinion Judge:RADCLIFF, J.
Party Name:The STATE of Ohio, Appellee, v. JACOBELLIS, Appellant.
Attorney:Defendant was indicted on two counts by the September 1959 Grand Jury of Cuyahoga County, Ohio, for violation of Section, '* * * 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 las...
Judge Panel:ZIMMERMAN, Acting C. J., and MATTHIAS, BELL and O'NEILL, JJ., concur. HERBERT, J., dissents.
Case Date:January 17, 1962
Court:Supreme Court of Ohio

Page 777

179 N.E.2d 777 (Ohio 1962)

173 Ohio St. 22

The STATE of Ohio, Appellee,

v.

JACOBELLIS, Appellant.

No. 37200.

Supreme Court of Ohio.

January 17, 1962

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

Page 778

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' [173 Ohio St. 23]

'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. [173 Ohio St. 24]

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

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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 [173 Ohio St. 25] 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...

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