198 So.2d 889 (La. 1967), 48393, State v. Henry

Docket Nº:48393.
Citation:198 So.2d 889, 250 La. 682
Party Name:STATE of Louisiana v. Percy HENRY.
Case Date:May 01, 1967
Court:Supreme Court of Louisiana

Page 889

198 So.2d 889 (La. 1967)

250 La. 682

STATE of Louisiana

v.

Percy HENRY.

No. 48393.

Supreme Court of Louisiana.

May 1, 1967

Page 890

Rehearing Denied June 5, 1967.

Page 891

[250 La. 688] Carmouche & Shelton, Emile A. Carmouche, Jr., Thomas Robert Shelton, Rayne, for defendant-appellant.

Jack P. F. Gremillion, Atty. Gen., William P. Schuler, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Leon E. Roy, Jr., Asst. Dist. Atty., for appellee.

HAMITER, Justice.

Percy Henry was charged in a bill of information with violating LRS 14:106 (as amended), the Louisiana Obscenity Statute. He was tried and convicted. Later, he was sentenced to pay a fine of $301 and costs, and in default of payment of the fine and costs to serve thirty days in the parish jail. He is appealing from the conviction and sentence.

At least six bills of exceptions, reserved during the course of the proceedings, were perfected and are contained in the record. Here, defense counsel, both in brief and orally and contrary to the prefered procedure in this court, has argued the case on the basis of specifications of error rather than on the bills of exceptions. We shall discuss the issues as presented in the bills; and we shall relate them, as best we can, to the alleged specifications.

Bill No. 1 was reserved to the court's overruling defendant's motion to quash the bill of information. In the motion it is urged that (1) the statute under which the defendant was charged is unconstitutional[250 La. 689] and (2) the bill of information is defective in that it is too vague and indefinite to enable him to prepare a defense.

LRS 14:106 (as amended), insofar as pertinent, reads:

'A. Obscenity is the intentional:

'(2) Production, sale, exhibition, gift, or advertisement with the intent to primarily appeal to the prurient interest of the average person, of any lewd, lascivious, filthy or sexually indecent written composition, printed composition, book, magazine, pamphlet, newspaper, story paper, writing, phonograph record, picture, drawing, motion picture film, figure, image, wire or tape recording or any written, printed or recorded matter of sexually indecent character which may or may not require mechanical or other means to be transmitted into auditory, visual or sensory representations of such sexually indecent character.

'(3) Possession with the intent to sell, exhibit, give or advertise any of the pornographic material of the character as described in paragraph 2 above, with the intent to primarily appeal to the prurient interest of the average person.'

The bill of information herein recites that the accused '* * * on or about the 26th day of January, in the year of our Lord 1965, in the Parish of Iberia, aforesaid and within the jurisdiction of the [250 La. 690] Sixteenth Judicial District of the State of Louisiana did unlawfully and intentionally produce, sell, exhibit and avertise, and possess with the intent to sell, exhibit and advertise, certain lewd, lascivious, filthy and sexually indecent printed compositions, books, magazines, pictures, figures, images and drawings, with the intent to primarily appeal to the prurient interest of the average person, in violation of La.R.S. 14:106: OBSCENITY.'

The crime of obscenity under LRS 14:106 (as amended) can be committed in a number of different ways, but it is apparent that this defendant was charged only with having committed the conduct denounced in paragraphs (2) and (3) of the statute. Consequently, our discussion of the assertion of unconstitutionality will relate only to those two paragraphs, the others being immaterial to this prosecution.

The defendant alleges that the statute is unconstitutional because it violates the provisions of the United States Constitution

Page 892

and our own constitution relative to freedom of speech, of the press, and of expression; and, further, because its terms are too vague and indefinite to sufficiently describe the acts denounced.

There is no substance in the first alleged ground of unconstitutionality. It is now well settled by decisions of the United States Supreme Court and of this [250 La. 691] court that the constitutional guarantees relied on by defendant are not absolute and that their abuse in the area of obscenity can be restricted and controlled. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, Ginsburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56, and State v. Roufa, 241 La. 474, 129 So.2d 743.

Nor do we find any merit in the second alleged ground of unconstitutionality. The same contention was made in State v. Roufa,supra. At that time the pertinent part of LRS 14:106A(2) (as amended by Act 388 of 1958) provided: 'Obscenity is the intentional:

'(2) Production, sale, exhibition, possession with intention to display, exhibit, or sell, or the advertisement of, any obscene, lewd, lascivious, filthy, or sexually indecent print, picture, motion picture, written composition, model, instrument, contrivance or thing of whatsoever description; * * *.' We said of the statute: 'The words of the instant statute have a well defined and a common accepted meaning and are not vague.' (See also Roth v. United States, supra, wherein the United States Supreme Court maintained a very similary worded California statute against an attack made on the same ground asserted here.)

[250 La. 692] By Act 199 of 1960 the statute was amended so as to read as hereinabove first set forth. A comparison of the two texts immediately reveals that the amendment in no way impaired the statute's clarity. The only material change was to insert the provisions requiring a specific intent on the part of the alleged offender, this for the obvious purpose of having the statute meet the test of constitutionality set forth in the Roth dicision, supra--that is, that the denounced conduct be committed with the intent to appeal to the prurient interest of the average person. If anything, the amendment narrowed the effect of the statute and further clarified the meaning of the term 'obscene'.

Moreover, in City of Hammond v. Conner, 250 La. 462, 196 So.2d 276; the accused was charged, in an affidavit, with the violation of an ordinance of the City of Hammond, the pertinent provisions of which are substantially identical to those of the instant statute. Like this defendant he, in a motion to quash the affidavit, assailed the constitutionality of the ordinance on the same grounds urged here. The motion was overruled. Following the accused's convicted and sentence he applied to this court for writs, reurging in the application the motion to quash. We denied the writs, observing that 'we find no error of law with respect to the * * * complaints made by relator.'

[250 La. 693] Likewise, we have found groundless the defendant's assertion that the bill of information should be quashed because 'it does not meet the statutory and constitutional requirements which make it mandatory that such bill of information allege all of the facts and elements which are necessary to cleraly inform the accused of the nature and cause of the accusation against him.' His contention, in other words, is that the instant information is insufficient because it does not list the names of the magazines allegedly handled. Incidentally, following the overruling of the motion to quash, he was given all of such names by the state in a requested bill of particulars.

Although not cited in defendant's brief, the constitutional and statutory provisions

Page 893

apparently relied on are Article I, Section 10 of the Louisiana Constitution of 1921 and LRS 15:227. The former provides that 'In all criminal prosecutions, the accused shall be informed of the nature and cause of the accusation against him; * * *.' The latter recites: 'The indictment must state every fact and circumstance necessary to constitute the offense, but it need do no more, and it is immaterial whether the language of the statute creating the offense, or words unequivocally conveying the meaning of the statute, be used.'

Reference to LRS 14:106 (as amended) shows that the crime of obscenity may be committed, as aforeshown, in numerous unrelated[250 La. 694] fashions. The language used in this bill of information clearly delineates the particular manner in which the alleged violation occurred, it tracking certain portions of paragraphs (2) and (3) of the state.

In State v. Odom, 247 La. 62, ...

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