Cohen v. State

• Decision Date: 30 November 1960
• Citation: 125 So. 2d 560
• Parties: Sol I. COHEN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 560

125 So.2d 560

Sol I. COHEN, Appellant, v. STATE of Florida, Appellee.

Supreme Court of Florida.

Nov. 30, 1960.

Rehearing Denied Jan. 17, 1961.

Truett & Watkins, Miami, for appellant.

Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.

O'CONNELL, Justice.

This is the same case considered previously in our opinion reported at 121 So.2d 155. Following that opinion and in accordance with the directions contained therein, the trial court entered an Amended Order Denying Motion to Quash and Motion for New Trial in which the court recited that it directly passed upon the validity of § 847.01 F.S.1957, F.S.A., and determined it to be valid. Thus, it is now clear that we do have jurisdiction of this appeal.

As explained in our first opinion above mentioned, the appellant, Sol I. Cohen, was informed against, tried by jury, found and adjudged guilty, and sentenced for a violation of § 847.01, supra.

Appellant was proceeded against under the first subsection of said statute which reads as follows:

'(1) It is declared to be unlawful to publish, sell, distribute, lend, show or transmute, or to offer to do any of the foregoing, of any obscene, lewd, lascivious, filthy, indecent, immoral, degrading, sadistic, masochistic or disgusting book, 'pocket book,' magazine, periodical, pamphlet, newspaper, article, comic book, story book, story paper, writing, paper, picture, drawing, photograph, figure, image, motion picture film, phonograph record, wire or tape or other recording, or any other form of reproduction or any representation devoted principally to the presentation and exploitation of illicit sex, lust, passion, depravity or immorality. Whoever violates the provisions of this subsection shall be guilty of a felony and upon conviction shall be fined not more than one thousand dollars ($1,000.00) or be imprisoned for a period not to exceed three (3) years, or both. * * *'

It is apparent that scienter is not prescribed in the statute. Therefore the statute as written makes it a crime to sell or distribute any publication or article of the character described therein irrespective of whether the person selling or distributing has or does not have knowledge of the obscene, lewd, etc. character of the contents of the publication or article.

The material allegations of the information under which appellant was tried and convicted read:

'* * * Sol I. Cohen * * * did unlawfully sell and distribute an obscene, lewd, lascivious, filthy, indecent, immoral, degrading or disgusting magazine, periodical or pamphlet, to-wit: Cocktail, Volume Number One, Issue Number Two, a further and more particular description of the said magazine, periodical or pamphlet being to the State Attorney unknown, * * *.'

Appellant attacks his conviction on several grounds.

First and foremost he contends that § 847.01 is unconstitutional in that it eliminates the requirement of scienter and because it fails to set forth ascertainable standards of guilt.

He also contends that the information is so vague, indefinite, and uncertain as to fail to charge any offense. In addition he says the trial court erred in refusing to grant his motion for directed verdict and motion for new trial for the reason that the evidence was insufficient to support the verdict of guilty.

Last, he argues that the trial court committed error in giving certain instructions to the jury and in refusing to give others requested by appellant.

In its brief, the State admits that if the statute in question is construed as eliminating the element of scienter it would probably be unconstitutional under holding of the United States Supreme Court in the recent case of Smith v. People of State of California, 1959, 361 U.S. 147, 80 S.Ct. 215, 216, 4 L.Ed.2d 205.

In the last cited case Smith was charged under an ordinance of the City of Los Angeles, which ordinance 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.'

The majority opinion of the United States Supreme Court in that case held the ordinance to be invalid as a violation of the First Amendment to the United States Constitution as made applicable to State action by the due process clause of the Fourteenth Amendment.

The majority opinion held that the effect of the ordinance as it was construed and applied by the trial court and the State appellate court was to impose a strict or absolute criminal responsibility on the appellant Smith not to have obscene books in his shop. The ordinance was held to eliminate the element of scienter, i. e. knowledge of the obscene or indecent character of such books, thereby making Smith criminally responsible irrespective of his knowledge of the obscene or indecent character of the books in his shop.

The court held such effect would so tend to inhibit constitutionally protected expression that the ordinance could not stand.

However, says the State, the instant statute can and should be construed as not eliminating but rather as requiring proof of scienter and, as thus construed, can be upheld. The State calls our attention to the fact that this Court has so construed at least two statutes. State v. Slaton, Fla.1953, 68 So.2d 894 (statute prohibited illegal transmission of racing information) and Brent v. State, 1937, 127 Fla. 626, 173 So. 675 (larceny statute then in force). Also see State v. Diez, Fla.1957, 97 So.2d 105, in which this Court held a statute requiring a non-communist oath to be constitutional by construing the statute to require those seeking state employment to take an oath in which they must swear that they have not knowingly lent aid, advise, or counsel, etc. to the Communist Party, although the form of oath set forth in the statute did not contain the word knowingly.

In its brief, the State contends that the other points raised by appellant have either been waived or are not valid bases for the reversal of the judgment and sentence under attack.

However, at the oral argument before this Court the State, while still contending that the statute should be construed as to include a requirement of scienter and should therefore be held to be valid, admitted that the trial court committed fundamental error in charging the jury that the State was not required to prove scienter or knowledge of the obscene character of the publication involved herein.

We think this admission is a correct one. The State is to be commended for its candor; however, had it made the admission earlier in the proceedings the time involved in the ultimate disposition of this cause could have been shortened materially.

In its charges to the jury the trial court, among other things, instructed the jury that there were only two questions involved in a prosecution for obscenity, the first being whether the publication was obscene and the second being:

'* * * did the defendant publish, sell, distribute, lend, show, or transmute [sic] or do any other act in reference to the obscene article which the statute prohibits, irrespective of whether the defendant had knowledge of the contents of...