Com. v. Palladino

• Decision Date: 25 June 1970
• Citation: 260 N.E.2d 653,358 Mass. 28
• Parties: COMMONWEALTH v. Joseph N. PALLADINO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 653

260 N.E.2d 653

358 Mass. 28

COMMONWEALTH v. Joseph N. PALLADINO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 10, 1970.

Decided June 25, 1970.

Herald P. Fahringer, Jr., Buffalo, N.Y. (John A. Pino, Boston, with him), for defendant.

Alvan Brody for the Commonwealth.

Before WILKINS, C.J. and SPALDING, CUTTER, REARDON and QUIRICO, JJ.

SPALDING, Justice.

The defendant was tried on six complaints charging violations of G.L. c. 272, § 28A (as appearing in St.1959, c. 492, § 2), ¹ for the sale, and possession with intent to sell, of certain magazines and a film alleged to be obscene. The cases were heard by a judge who found the defendant guilty on all complaints and sentences were imposed. The cases come here on exceptions.

There was evidence of the following. The defendant owned and operated the 200 Book Club, Inc. on Washington Street in Boston. A police officer on October 14, 1968, purchased the magazines 'Les,' and 'Exciting,' and on February 5, 1969, purchased a film entitled 'Wild Man and Bride.' Subsequently, other reels of the film were seized pursuant to a search warrant. The complaints under consideration arise out of these purchases and seizures.

The materials in question contain for the most part photographs of semi-nude women, posed with their breasts and genitalia exposed, often in positions that could be considered sexually provocative. 'Exciting' contains only photos of women. 'Les' has some women posing together, sometimes touching or caressing each other. The film 'Wild Man and Bride' portrays a nude man and woman cavorting on a bed kissing and caressing. None of the materials except possibly the films depicts sexual congress or copulation in any form.

The defendant excepted to the judge's denial of motions to dismiss and his requests for rulings of law. He argues that § 28A is unconstitutional; that the complaints were defective; that the materials in question were not obscene; and that the evidence did not warrant convictions.

At the outset we are confronted with the complaints, two of which charged that the defendant 'did sell a certain * * * magazine which was * * * obscene, indecent, and impure,' and four of which charged that he 'did have in his possession a certain obscene, indecent, or impure * * * (film and magazine) for the purpose of sale.' None of the complaints alleged that the defendant knew the obscene nature of the publications he is alleged to have possessed or sold. In Demetropolos v. Commonwealth, 342 Mass. 658, 175 N.E.2d 259, we construed § 28A to include the element of a defendant's knowledge of the obscene nature of the materials involved in order to preserve it from the constitutional infirmities which invalidated a similar statute in Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. In Commonweatlh v. Corey, 351 Mass. 331, 221 N.E.2d 222, we reversed a conviction under § 28 (sale of obscene literature to children under eighteen) because scienter on the part of the defendant had not been proved.

The defendant contends that the failure to aver scienter in the complaints is fatal to prosecution for violations of § 28A, ^1a despite the fact that the complaints were phrased in the words of the statute. General Laws c. 277, § 17, requires that '(a)n indictment ² shall contain * * * (a) plain and concise description of the act which constitutes the crime, or the appropriate legal term descriptive of such act, without a detailed description thereof. The words used in a statute to define a crime * * * may be used' (emphasis supplied). When the statutory language does not include all the elements of the crime, it neither describes the act which constitutes the crime, nor defines the crime. The definition of the crime and description of the act constituting it consist of the statutory words together with judicial interpretation placed on them. In such a case an indictment phrased solely in the language of the statute does not meet the requirements of § 17. Nor can it be said that the language of § 28A alone is the 'appropriate legal term descriptive of such act.' General Laws c. 277, § 79, annexes forms for indictments and complaints which 'shall be sufficient in cases to which they are applicable.' No forms, however, are annexed for offences under § 28A. In fact, in at least two instances where the defendant's knowledge is an element of the crime, the prescribed forms do include 'knowingly.' See forms for possession of burglarious tools and receipt of stolen goods contained in § 79.

Numerous cases and authorities recognize the rule that a full and unambiguous statement of all the elements necessary to constitute the offence intended to be punished is indispensable to a criminal accusation. Thus it has been said that it is sufficient to charge an offence in the words of the statute but only if the statute 'fully, directly and expressly, without any uncertainty or ambiguity set(s) forth all the elements necessary to constitute the offence intended to be punished.' United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135; Evans v. United States, 153 U.S. 584, 587, 14 S.Ct. 934, 38 L.Ed. 830; United States v. Seeger, 303 F.2d 478, 482 (2d Cir.), and cases cited. Cf. G.L. c. 277, §§ 20, 21. In Commonwealth v. Bracy, 313 Mass. 121, 124, 46 N.E.2d 580, we said, 'If an indictment fails to allege any fact necessary to constitute an offence, even statutory, it is defective.' Where knowledge is an essential ingredient of the offence charged, the defendant's knowledge must be specifically alleged. Anderson, Wharton's Criminal Law & Procedure, § 1774.

In most cases an indictment repeating the words of the statute would include all the elements of the crime intended to be punished, and thus be sufficient. Where judicial construction of a statute, however, has added an element not included in the statutory language (such as scienter) to save its constitutionality, an indictment worded solely in the statutory language charges no crime, for an essential ingredient of the offence is missing. 'No court has jurisdiction to sentence a defendant for that which is not a crime.'...