People v. Friedrich

• Decision Date: 13 January 1944
• Docket Number: 27343.,Nos. 27342,s. 27342
• Citation: 385 Ill. 175,52 N.E.2d 120
• Parties: PEOPLE v. FRIEDRICH.
• Court: Illinois Supreme Court

385 Ill. 175

52 N.E.2d 120

PEOPLE

v.FRIEDRICH.

Nos. 27342, 27343.

Supreme Court of Illinois.

Nov. 16, 1943.

Rehearing Denied Jan. 13, 1944.

Error to Municipal Court of Chicago; Joseph B. Hermes, Judge.

John M. Friedrich was convicted of exhibiting and offering for sale obscene and indecent pictures and for having contributed to the delinquency of a child under 16 years of age, and he brings error.

Reversed and remanded with directions.William Goldstein and Isadore Goldstein, both of Chicago (Richard E. Westbrooks, of Chicago, of counsel), for plaintiff in error.

George F. Barrett, Atty. Gen., and Thomas J. Courtney, State's Atty. of Chicago (Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, and Joseph A. Pope, all of Chicago, of counsel), for the People.

MURPHY, Justice.

Cause No. 27342 is the record of a trial held in the municipal court of Chicago where plaintiff in error was tried on an information which charged him with the violation of section 223 of division I of the Criminal Code (Ill.Rev.Stat.1941, chap. 38, par. 468), that is, of exhibiting and offering for sale obscene and indecent pictures. Cause No. 27343 is a record from the same court, in which defendant was tried on an information charging the violation of paragraphs 103 and 104 of chapter 38, the specific charge being that the defendant contributed to the delinquency of a male child under the age of sixteen years by selling him obscene, immoral and indecent books. Defendant did not challenge the information in either case by a motion to quash nor did he ask for a bill of particulars. Both cases were tried before the court without a jury. His motions in arrest of judgment were overruled and in the former case he was sentenced to six months in the county jail and in the latter for a period of one year. Both cases come to this court on the grounds that constitutional questions are involved. The evidence does not appear in the records. The questions open for consideration are limited to those raised by the motions in arrest of judgment.

The pertinent part of the statute upon which the amended information in No. 27342 was drawn provides: ‘Whoever * * * shall sell or offer to sell * * * any obscene and indecent book, pamphlet, paper, drawing, * * * stereoscopic picture, model, cast, * * * shall be confined in the county jail not more than six months, or be fined not less than $100 nor more than $1,000 for each offense * * *.’ The information as amended charged that the defendant ‘on the 30th day of December, 1942 * * * did * * * unlawfully, knowingly, exhibit, offer for sale, circulate, distribute indecent and lewd pictures of an immoral and scandalous nature, too gross to be spread of record in this amended information.’

It is contended that said section violates sections 2, 9 and 10 of article II, and article III of the State constitution, Smith-Hurd Stats., and the due-process clause of the Federal constitution.

The general purpose of the statute is to prohibit the distribution by sale or otherwise of obscene and indecent books, writings, pamphlets, pictures and of articles of a similar nature. The statute directs that the doing of certain acts leading to, or in preparation for, the distribution of such articles constitutes a criminal offense. It is a well-settled principle of law that one can not challenge the validity of a statute except as to the matters of which he is aggrieved and therefore, defendant's attack in the present case is restricted to the provisions of the statute upon which the information is based. It is charged that defendant offered for sale indecent and lewd pictures. The difference between the language used in the information and the words of the statute is immaterial and the charge will be considered as having been alleged in the language of the statute.

Defendant contends the act is vague, indefinite and does not define a crime and that it therefore violates said constitutional provisions. The specific argument is made that the act does not define the elements that a picture must possess to render it obscene and indecent, and that such defect leaves it open for the court and jury to supply their own standards. Numerous cases have been decided by this court where similar attacks have been made upon statutes defining a crime and the rules announced in those cases are controlling here. One of the most recent is People v. Green, 368 Ill. 242, 13 N.E.2d 278, 282, 115 A.L.R. 348. In that case it was claimed that a section of the Uniform Traffic Act was so vague and indefinite as to what constituted the crime that it could not be determined when there was a violation. After reviewing the earlier cases it was said: ‘We think the true rule is that if the Legislature uses words having a common-law meaning or a meaning made definite by statutory definition or previous judicial construction, it may strike directly at the evil intended to be curbed, leaving it to the pleader to state facts bringing the case within the statutory definition and to the judicial department of government to interpret the application of the act to the facts stated.’

The words ‘obscene’ and ‘indecent’ are words of common usage and are ordinarily used in the sense of meaning something offensive to the chastity of mind, delicacy and purity of thought, something suggestive of lustfulness, lasciviousness and sensuality. It is a well-established rule that in the application of a statute, the words are to be given their generally-accepted meaning, unless there is something in the act which indicates that the legislature used them in a different sense and there is nothing in this act that indicates such intent. Defendant does not contend such words have a dual meaning but argues that one person might see vulgarity and indecency in a picture while another would give it cultural value and consider it a work of art. Such contention does not demonstrate uncertainty or vagueness in the meaning of the words used in the act but rather denotes a difference in the process of valuing the qualities of the picture. Most criminal acts are subject to such condition and each individual must determine for himself and at the risk of punishment, if his conclusion is erroneous, whether his acts constitute a violation of the statute. To the one who is about to engage in the sale of such pictures, the statute is clear as to what is prohibited. His only problem is as to whether the pictures are obscene and indecent. He may honestly conclude they are not and the court or jury determine that they were, but this does not render the statute void for vagueness or indefiniteness.

In Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 781, 57 L.Ed. 1232, an attack similar to the one made here was directed against an act of Congress commonly known as the Sherman Act. Justice Holmes, speaking for the court said: ‘And thereupon it is said that the crime thus defined by the statute contains in its definition an element of degree as to which estimates may differ, with the result that a man might find himself in prison because his honest judgment did not anticipate that of a jury of less competent men. * * * The law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. * * * We are of opinion that there is no constitutional difficulty in the way of enforcing the criminal part of the act.’

Defendant's claims that the act violates various sections of the constitution are covered by the foregoing consideration and this opinion need not be further extended by a discussion as to each. The statute is specific as to the offense charged against defendant.

Defendant's further contention is that the amended information does not charge the commission of a criminal offense. As previously noted the offense is charged in the language of the statute. In Fuller v. People, 92 Ill. 182, the second and fourth counts of an indictment charged in one count that the defendant had in his possession a certain obscene and indecent drawing and in the other that it was an obscene and indecent picture. It was held that such counts charged the commission of an offense in the language of the statute and in this character of case that was all that the law required. Also see Strohm v. People, 160 Ill. 582, 43 N.E. 622.

Defendant relies upon People v. Green, 368 Ill. 242, 13 N.E.2d 278, 115 A.L.R. 348, but that case is distinguishable from this in that there the statute upon which the indictment was drawn did not specify the elements of the offense and the holding was that the indictment should contain allegations of facts sufficient to bring it within the statute. In this case the elements of the offense are the offering for sale of obscene and indecent pictures and this was the allegation of the amended information and is sufficient to advise the defendant of the charge preferred against him.

The allegations of the amended information followed the rule announced in McNair v. People, 89 Ill. 441, which was that an indictment charging an offense under this same statute should set up the supposed obscene matter unless it was in the hands of the defendant, or out of the power of the prosecution, or too gross and obscene to spread on the records of the court-either of which facts, if existing, should be averred as an excuse for not setting...