People v. Villano

• Decision Date: 07 March 1963
• Docket Number: No. 14,14
• Citation: 120 N.W.2d 204,369 Mich. 428
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Patsy VILLANO, Defendant and Appellant.
• Court: Michigan Supreme Court

Page 204

120 N.W.2d 204

369 Mich. 428

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Patsy VILLANO, Defendant and Appellant.

No. 14.

Supreme Court of Michigan.

March 7, 1963.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Eugene Krasicky, Sols. Gen., Samuel H. Olsen, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Angelo A. Pentolino, Asst. Pros. Atty., Detroit, for the People.

Max E. Klayman and George Stone, Detroit, for defendant and appellant, Lawrence J. Ellenbogen, Detroit, of counsel.

Rolland R. O'Hare, Erwin Ellmann, Gen. Counsel, Bruce A. Miller, Detroit, for amicus curiae.

Before the Entire Bench.

CARR, Chief Justice.

This criminal prosecution was instituted in the recorder's court of the city of Detroit for an alleged violation of section 343a of the Michigan penal code* added to the code by P.A.1957, No. 265. Said added section read as follows:

'Sec. 343a. Any person who sells, lends, gives away, distributes, shows or transmutes or offers to sell, lend, give away, distribute, show or transmute, or has in his possession with intent to sell, lend, give away, distribute, show or transmute, or advertise in any manner, or who otherwise offers for loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, newspaper, story paper, writing, paper, phonograph record, picture, drawing, photograph, motion picture film, figure, image, wire or tape recording or any written, printed or recorded matter of an indecent character which may or may not require mechanical or other means to be transmuted into auditory, visual or sensory representations of such character, shall be guilty of a misdemeanor, and upon conviction shall be punished by imprisonment in the county jail for not more than 1 year or by a fine of not more than $1,000.00, or by both such fine and imprisonment.' C.L.1948, § 750.343a (Stat.Ann.1959 Cum.Supp. § 28.575).

The complaint and warrant in the case charged that defendant on to-wit the 7th day of August, 1961, at the city of Detroit, Wayne County, Michigan, 'did then and there have in his possession with intent to sell obscene, lewd, lascivious, filthy, indecent or disgusting magazines containing obscene pictures. Sec. 750.343a Act 265 P.A.1957, contrary to the form of the statute, etc.' An examination on the charge against defendant was held at which proof was offered on behalf of the people to the effect that a member of the police force of the city of Detroit was in proximaty to defendant's place of business at 561 Michigan avenue, said city, about 2:30 in the afternoon, that a bookstore business was conducted at said address, that the officer was standing on the sidewalk looking into the window, and that he observed defendant and another man examining magazines containing pictures of nude individuals which the witness characterized as indecent. Following such observation the officer in question summoned his sergeant who was in an adjacent place of business and returned with him to defendant's store. It was claimed that the officers asked defendant, after identifying themselves, if he had any objections to their looking around, and that on receiving a negative answer the officer who had made the claimed observations stepped behind the counter and removed therefrom a paper bag from which defendant and the other person referred to had taken the magazines or books that they were examining. It was further claimed that said bag contained indecent publications.

On the basis of the publications contained in said bag, which the officers took with them, the complaint was made and warrant issued, the arrest taking place on August 8th. On the examination the contents of the bag were offered in evidence and received over the objection by defendant's counsel based on the claim that they were taken as the result of an unlawful search and seizure.

Defendant was held for trial on the charge set forth in the complaint and warrant, and an information was filed by the prosecuting attorney of the county on September 11, 1961, charging defendant with the possession of obscene literature in violation of the statute, with intent to sell, the language of the information following that of the complaint and warrant. Motion to suppress and to quash the information was filed December 22, 1961, on behalf of defendant, alleging the unlawful search and seizure claimed and further asserting that the arrest of the defendant was unlawful, that the proofs on the examination failed to establish probable cause that a crime was committed, that the exhibits offered in evidence were not of an obscene nature, and in substance that the statute under which the prosecution was instituted was invalid. The motion was denied, and on leave granted defendant has appealed from the order denying his motion to suppress and to quash the information.

As reference to section 343a of the penal code, above quoted, will disclose, the legislature did not require in the enactment of 1957 that the act of possession of obscene literature with intent to sell must be committed 'knowingly', (or any equivalent expression), in order to be punishable. The section was amended in this respect by P.A.1961, No. 217, by inserting therein the word 'knowingly.' The amendatory act became effective on September 8, 1961.

The principal question at issue in the case is whether the section quoted, as enacted in 1957, was constitutional. On behalf of appellant it is insisted that the failure of the legislature to specifically provide that scienter should be a necessary element of the offense sought to be created rendered said section open to the objection that in the form adopted it violated the provisions of State and Federal constitutions providing for due process and equal protection of the law. Reliance is placed on the decision of the Unites States supreme court in Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, which involved the validity of an ordinance of the city of Los Angeles, California, in effect declaring it to be unlawful for any person to have in his possession any obscene or indecent writing in a place of business where books were sold or kept for sale. The ordinance was construed as authorizing conviction of a violation thereof on proof of possession of objectionable publications. It was not specifically provided that knowledge as to the nature and contents of the publications involved was an essential element of guilt. The State courts sustained the ordinance, but the Federal supreme court reversed. After referring to prior decisions, it was said:

'These principles guide us to our decision here. We have held that obscene speech and writings are not protected by the constitutional guarantees of freedom of speech and the press. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. The ordinance here in question, to be sure, only imposes criminal sanctions on a bookseller if in fact there is to be found in his shop an obscene book. But our holding in Roth does not recognize any state power to restrict the dissemination of books which are not obscene; and we think this ordinance's strict liability feature would tend seriously to have that effect, by penalizing booksellers, even though they had not the slightest notice of the character of the books they sold. The appellee and the court below analogize this strictliability penal ordinance to familiar forms of penal statutes which dispense with any element of knowledge on the part of the person charged, food and drug legislation being a principal example. We find the analogy instructive in our examination of the question before us. The usual rationale for such statutes is that the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors--in fact an absolute standard which will not hear the distributor's plea as to the amount of care he has used. Cf. United States v. Balint, 258 U.S. 250, 252-253, 254, 42 S.Ct. 301, 302, 303, 66 L.Ed. 604. His ignorance of the character of the food is irrelevant. There is no specific constitutional inhibition against making the distributors of food the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of the press stand in the way of imposing a similar requirement on the bookseller. By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public's access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. It has been well observed of a statute construed as dispensing with any requirement of scienter that: 'Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience.' The King v. Ewart, 25 N.Z.L.R. 709, 729 (C.A.) * * *.

'We have said: 'The fundamental freedoms of speech and press have contributed greatly to the...