356 P.2d 495 (Or. 1960), State v. Jackson

Citation:356 P.2d 495, 224 Or. 337
Opinion Judge:O'CONNELL, J.,
Party Name:STATE of Oregon, Appellant, v. William JACKSON, Respondent.
Attorney:Robert J. McCrea, Deputy District Attorney for Lane County, Eugene, argued the cause for appellant. With him on the brief was William F. Frye, District Attorney for Lane County, Eugene. Stanley Fleishman, Los Angeles, California, and Bruce R. Avrit, Eugene, argued the cause for respond- ent]. On ...
Case Date:October 19, 1960
Court:Supreme Court of Oregon
 
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Page 495

356 P.2d 495 (Or. 1960)

224 Or. 337

STATE of Oregon, Appellant,

v.

William JACKSON, Respondent.

Supreme Court of Oregon.

October 19, 1960

Argued and Submitted May 11, 1960.

Page 496

[224 Or. 339] Robert J. McCrea, Deputy Dist. Atty., for Lane County, Eugene, argued the cause for appellant. With him on the brief was William F. Frye, Dist. Atty., for Lane County, Eugene.

Stanley Fleishman, Los Angeles , Cal., and Bruce R. Avrit, Eugene, argued the cause for respondent. [224 Or. 340] On the brief were Ramstead & Avrit, Eugene, and Brock, Fleishman & Rykoff, Los Angeles, Cal.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and MILLARD, JJ.

ROSSMAN, Justice.

This appeal tests the constitutionality of the Oregon obscenity statute, ORS 167.150. On March 31, 1958, the grand jury for Lane County returned an indictment charging the defendant with a violation of the act, reciting that he did 'wilfully and unlawfully sell, distribute and possess with intent to sell and distribute' a book entitled 'The Strange Three.' The indictment describes the book as follows:

'* * * said book as an entirety being indecent and obscene, tending to incite lascivious thoughts and tending to arouse lustful desires * * *.'

It will be noticed that the indictment charges that the defendant acted 'wilfully.' Wong v. City of Astoria, 13 Or. 538, 11 P. 295, held that 'wilfully' is equivalent in its connotation to knowingly. That

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definition has been adhered to ever since Falls v. Mortensen, 207 Or. 130, 295 P.2d 182.

At the trial, before evidence was taken, the defendant renewed a demurrer filed earlier, challenging the indictment on the ground that the act violates Article I, Sections 8 and 11, of the Oregon Constitution and the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. The trial judge sustained the demurrer, and from the resulting judgment the state appeals.

[224 Or. 341] ORS 167.150 is divided into five sections. Although the indictment charges a violation of only the first, the entire statute is set out below:

'Any person who:

'(1) Imports, designs, copies, draws, photographs, prepares, publishes, sells, lends, gives away, distributes, shows or exhibits or has in his possession with intent to publish, sell, lend, give away, distribute, show or exhibit, any article or instrument of indecent or immoral use, or any obscene or indecent book, paper, writing, printed matter, picture, drawing, photograph or engraving; or

'(2) Gives or publishes or causes to be given or published to any person, any written or printed notice or advertisement of or concerning any such article or instrument, or obscene or indecent article or thing; or

'(3) Hires, uses, employs, or permits any person to sell, give away or distribute any such article or instrument, or obscene or indecent article or thing; or

'(4) Prints, publishes, advertises, sells, lends, gives away or shows or has in his possession with intent to publish, advertise, sell, lend, give away or show, any book, paper or other publication that purports to relate or narrate the criminal exploits of any desperate or convicted felon, or any book, paper or other publication that contains accounts or stories of crime or lust or deeds of bloodshed; or

'(5) Presents or exhibits in any public place, by way of show or drama or play, what purports to be the criminal exploits of any desperado or convicted felon, shall be punished upon conviction by imprisonment in the county jail not more than six months or by a fine of not more than $500 or both.'

The trial judge supported his disposition of the case with an oral opinion delivered from the bench. [224 Or. 342] His statement, which is preserved as a part of the record, condemns ORS 167.150 as invalid for three reasons: (1) it imposes prior restraints upon publication contrary to the Oregon Constitution, Article I, Section 8; (2) it prohibits publication of crime news and deeds of lust and bloodshed thereby invading freedom of speech; (3) the word 'obscene,' as used by the act, is unconstitutionally vague, measured by the requirements of the Oregon Constitution. Finally, the trial judge was of the opinion that the indictment, because drawn in the language of the statute, must fall for indefiniteness. 'The very language of the statute forces the grand jury to draw the indictment in a language which is nothing but a conclusion of law.'

The trial judge gave consideration to the act as a whole, stating that he could save a part only by 'taking an editorial shears and paste pot and re-writing the statute.' We think, however, that the first subsection ORS 167.150(1) sets out a crime which is complete in itself and severable from the remaining activities proscribed by the act. Our legislature has declared by statute, ORS 174.040, that if any part of an act is held unconstitutional the remaining part shall continue in force unless 'so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the remaining parts would not have been enacted without the unconstitutional part' or unless the remaining parts, standing alone, 'are incomplete and incapable of being executed in accordance with the legislative intent.' ORS 174.040, which became law in 1951, Or.L.1951, ch. 314, § 4, was in effect

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when the Oregon Revised Statutes were enacted pursuant to Or.L.1953, ch. 3. Since the code is an independent enactment, and not merely a compilation of prior law, State v. Davis, 1956, 207 Or. 525, 296 [224 Or. 343] P.2d 240; State v. Holland, 1954, 202 Or. 656, 277 P.2d 386, we are under a duty to defer to the legislative rule of construction. Moreover, ORS 174.040 does no more than to codify what has long been the common law rule of construction in this state. Dodd v. State Industrial Accident Commission, 1957, 211 Or. 99, 112, 310 P.2d 324, 311 P.2d 458, 315 P.2d 138.

It is apparent that ORS 167.150 goes far toward exhausting the limits of constitutional power in dealing with obscene and other undesirable material, if in fact it does not go beyond such limits. While the act does not make criminal the mere possession of material declared to be unlawful, it does punish every act of creation, distribution or attempted distribution of such material. Moreover, the act sets up five categories of offenses, violation of any one of which would subject the offender to fine and imprisonment. Under these circumstances we believe that the act as a whole must be preserved even though some particular section should fall. Since, therefore, the validity of ORS 167.150(1) is not dependent upon the validity of the remaining four subsections of the statute, it is unnecessary to determine on this appeal whether or not the remaining subsections abridge any constitutionally guaranteed freedoms.

In support of the result reached below, the defendant points out that the statute, in terms, requires no element of scienter on the part of one who distributes obscene material. From this he claims that it was the intent of the authors to impose liability without mens rea. The briefs on this appeal were filed before the decision of the United States Supreme Court in Smith v. People of State of California, 1959, 361 U.S. 147, 80 S.Ct. 215, 216, 4 L.Ed.2d 205, and, as respondent notes, that case is controlling here. Smith, a bookseller, was convicted in [224 Or. 344] California for the violation of an act which made it unlawful for any person:

'* * * to have in his possession any obscene or indecent writing, (or) book * * * in any place of business where * * * books * * * are sold or kept for sale.'

As construed by the courts of California, this statute imposed absolute criminal liability without the necessity of proving knowledge on the part of the bookseller of the obscene character of the book. The Supreme Court reversed the conviction, a majority holding that the statute, as so construed and applied, would place a serious restriction upon distribution of books not obscene. The outer limits of the rule adopted were not explored. In this regard the court said:

'We need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying on obscene book in stock; whether honest mistake as to whether its contents in fact constituted obscenity need be an excuse; whether there might be circumstances under which the State constitutionally might require that a bookseller investigate further, or might put on him the burden of explaining why he did not, and what such circumstances might be. * * *'

From this it it apparent that ORS 167.150 is invalid unless knowledge is a necessary element of the offense. Generally, if an act is made criminal by statute but is not among those offenses deemed infamous at common law, omission of a requirement of knowledge from the statutory definition makes the act punishable without mens rea. State v. Brown, 1914, 73 Or. 325, 144 P. 444; State v. Wojahn, 1955, 204 Or. 84, 282 P.2d 675. We have held, however, that the appearance or non-appearance of the word 'knowingly' in [224 Or. 345] the definition of a statutory offense is not conclusive, and that the requirement of scienter is 'a matter of construction to be determined by considering the subject-matter of

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the statute, the language of the act, the evil sought to be eradicated or prevented, and the consequences of the several constructions to which the statute may be susceptible.' State v. Laundy, 1922, 103 Or. 443, 204 P. 958, 977, rehearing denied 103 Or. 443, 206 P. 290. Since we have a duty to give an act a constitutional construction if it can be done without wrenching the meaning of words, Wright v. Blue Mountain Hospital District, 1958, 214 Or. 141, 328 P.2d 314, we hold that ORS 167.150(1) can be enforced against only those who...

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