King v. Com.

• Decision Date: 24 October 1950
• Citation: 233 S.W.2d 522,313 Ky. 741
• Parties: KING v. COMMONWEALTH.
• Court: Supreme Court of Kentucky

Page 522

233 S.W.2d 522

313 Ky. 741

KING v.COMMONWEALTH.

Court of Appeals of Kentucky.

Oct. 24, 1950.

Davies & Hirschfeld, Newport, for appellant.

A. E. Funk, Atty. Gen., John B. Browning, Asst. Atty. Gen., for appellee.

HELM, Justice.

Appellant, David King, charged with the offense of having in his possession with intent to sell, lend, give away or show, obscene magazines of an indecent character, in violation of KRS 436.100, was found guilty and his punishment fixed at a fine of $500.He appeals, maintaining that: (1)The court erred in overruling appellant's demurrer to the indictment; (2)the court erred in overruling the motion of appellant to require the Commonwealth to elect; (3)the court erred in overruling appellant's motion for a directed verdict; and (4) the verdict of the jury is flagrantly against the weight of the evidence.

'The indictment is in three counts, charging the same offense in each.'The first count charges the commission of the offense as to the magazine 'Sunshine and Health,' a nudist magazine of November, 1949 issue; the second count charges the offense as to the magazine 'Modern Sun Bathing and Hygiene,'March, 1949 issue; the third count charges the offense as to the magazine 'Eyeful,' October issue.

Dave Donnelly, Chief of Detectives of the City of Newport, at the request of the Chief of Police of that city, went to appellant's news stand in Newport and obtained the magazines 'Sunshine and Health' and 'Eyeful,' which were admitted in evidence.The magazine 'Sunshine and Health' was 'stapled in two places.'

Leo Stauber, 18, at the request of Mr. Montag, went to appellant's news stand and obtained the magazine 'Modern Sun Bathing and Hygiene,' which was stapled.It was admitted in evidence.

Joseph Montag, a member of the 'Legion of Decency,' a group engaged in making investigation of the type of magazines on sale in the city, sent Leo Stauber to the news stand to obtain the magazine.

In the nudist magazine are numerous photographs of men, women, and children playing, working, and eating together in the nude.

Appellant has a news stand in Newport and another in Cincinnati.He says, 'I try to handle everything readable; in other words, I subscribe or take every periodical I can get hold of.It doesn't make any difference what kind--I try to get everything.Sometimes one reader wants one thing and one another.'He admits having the magazines in question.He obtained them from distributors.He stapled the pages of the nudist magazines to prevent people from turning through them, looking at the pictures, and putting them back without buying them.

The indictment is substantially in the words of the statute.This is sufficient.11 Ky. Digest, Indictment and Information, k110(3).The court properly overruled the demurrer.

Appellant was charged with having obscene magazines for sale.The indictment is perhaps inaptly drawn, but it charges but one offense.Nichols v. Commonwealth, 78 Ky. 180.Here but one offense was charged; that set out in the part of KRS 436.100 hereinafter quoted.

We do not have, as appellant maintains, such an indictment as that described in Caudill v. Commonwealth, 202 Ky. 730, 261 S.W. 253, where under the liquor law several different offenses were charged in one indictment.

Appellant insists that the court should have sustained his motion for a directed verdict.

KRS 436.100 provides: 'Any person who * * * has in his possession with intent to sell, lend, give away or show, * * * any obscene or disgusting book, magazine, pamphlet, newspaper, writing, picture, drawing, photograph, figure or image, or any written or printed matter of an indecent character, * * * shall be fined not less than fifty dollars nor more than one thousand dollars, or imprisoned for not less than ten days nor more than one year, or both.'

In 33 Am.Jur., page 17, it is said:

'Obscenity was indictable at common law, on the ground that what...