State v. Clein

• Decision Date: 27 March 1957
• Citation: 93 So.2d 876
• Parties: STATE of Florida, Appellant, v. Reubin J. CLEIN, Appellee.
• Court: Florida Supreme Court

Page 876

93 So.2d 876

STATE of Florida, Appellant, v. Reubin J. CLEIN, Appellee.

Supreme Court of Florida, Special Division B.

March 27, 1957.

Richard W. Ervin, Atty. Gen., Reeves Bowen, Asst. Atty. Gen., and John D. Marsh, County Sol., Miami, for appellant.

Robert R. Taylor Wallace N. Maer and Edward L. Lustgarten, Miami, for appellee.

O'CONNELL, Justice.

Reubin J. Clein, appellee here and defendant below, was informed against by the County Solicitor of Dade County for an alleged violation of F.S. § 847.01, F.S.A. Defendant filed a motion to quash the indictment. From an order granting defendant's motion to quash, the State appeals under authority of F.S. § 924.07, F.S.A.

The information, leaving out the formal parts thereof, alleged that the defendant:

(Part I) 'did then and there print, publish and distribute a certain printed and written paper containing obscene written decriptions, of an act of unnatural sexual perversion between a male and a female person, manifestly tending to the corruption of the morals of youths in the words and figures as hereinafter more fully set out in haec verba, towit:

(Part II) "This Happened In Miami Beach!'

"Her head was

(Picture)

In His lap'

(Picture)

"White Girl, Negro Man, Face Morals Rap

"The Moving Finger writes--for all interested in Segregation to see. * * *

"This happened very early the other morning in Miami Beach. Address, south side of 12th St., between Alton Rd. and Lenox Ave.

"Police Car 154 noticed a Cadillac auto parked there, with motor running.

"Officer Everett Walshon saw the Negro first. He was sitting up asleep, head lolling back on the top of the seat. Then the officer looked down, he saw the white girl. She was asleep, too--her head in the Negro's lap. The officer says the Negro was 'exposed'.

"The two were questioned separately. The Negro did not deny participating in an unnatural act. The evidence of it was irrefutable. The girl--who told the police she was a Jackson Memorial Hospital nurse and her name was Mary Connolly Premo--said she didn't remember what she had done. She only knew she had been 'drinking with Jimmy all that day' at an upper Miami Beach swank Bar * * *."

For our convenience we have divided the information into two parts and labelled them Part I and Part II. Part I was typewritten on the usual form of information. Part II was a copy of a portion of a publication entitled 'Miami Life', dated Saturday April 30, 1955 and under the title thereof carried the words 'Reubin J. Clein, Editor'.

The motion to quash filed by defendant listed five grounds. They are that: (1) the information failed to charge a crime; (2) the information charges one date and the publication shows another; (3) the article is not such that it would manifestly tend to the corrupting of the morals of youth; (4) the article is nothing more or less than a true report of a police case and does not contravene the statute involved; and (5) the article is not abscene as defined by the laws of the State of Florida.

The only question involved on this appeal is whether the trial court committed error in granting the motion to quash. We have concluded that he did.

Sec.847.01, F.S.A., in effect makes it unlawful, among other things, for any person to print, publish or distribute any printed paper containing obscene language or descriptions manifestly tending to the corruption of the morals of youth.

The defendant in his brief agrees that by his motion to quash he admits all allegation made in the information. His position is that, admitting all alleged therein, the information charges no crime under the statute.

The defendant contends, that no crime is charged because the article, if obscene, is not the kind of obscenity which would arouse sexual passions in youth, but rather, if it would do anything, it would arouse disgust. He reasons that the statute only intended to make unlawful obscenity which would arouse sexual passions in youth, not that which would repel.

As we understand the general rule in the United States a court may grant a motion to quash an information or indictment charging obscenity only when the court determines that a verdict that the matter was obscene would have to be set asise as against the evidence and reason. Unless it is clear that such a verdict would have to be set aside, the question of obscenity is a question for the determination of a jury. Certainly where reasonable men might differ as to the question of obscenity, the question is one for the jury. United States v. Bennett, C.C.S.D.N.Y.1879, 24 Fed.Cas. p. 1093, No. 14,571; Commonwealth v. Insenstadt, 1945, 318 Mass. 543, 62 N.E.2d 840; Hallmark Productions, Inc. v. Mosely, 8 Cir., 1951, 190 F.2d 904; People v. Seltzer, 1921, 122 Misc. 329, 203 N.Y.S. 809; Davidson v. State, 1923, 19 Ala.App. 77, 95 So. 54; Commonwealth v. New, 1940, 142 Pa.Super, 358, 16 A.2d 437; State v. Weitershausen, 1951, 11 N.J.Super. 487, 78 A.2d 595; People v. Wepplo, 1947, 78 Cal.App.2d Supp. 959, 178 P.2d 853; King v. Commonwealth, 1950, 313 Ky. 741, 233 S.W.2d 522. We feel that the same rule must apply in the determination of whether such matter would manifestly tend to corrupt the morals of youth.

The information here charged the offense substantially in the language of the statute and this is sufficient, certainly as to form. State v. Pound, Fla.1950, 49 So.2d 521.

While here let us also dispose of that ground in the motion to quash which charges the information bad because it alleges the commission of the alleged crime on April 29, 1955, while the newspaper article shows the date April 30, 1955. F.S. § 906.25, F.S.A. provides that no information shall be quashed except for the reasons expressed therein. This variance in dates is not one of those grounds. But this section must be construed with F.S. Chap. 909, F.S.A. Nevertheless, this variance in dates is one easily explained by the fact that newspapers are frequently published and circulated prior to the date thereon, and the date thereon is not conclusive. And we have held that one date may be alleged and another proved, providing the proof shows the crime committed before the information was filed and within the time of the Statute of Limitations. Horton v. Mayo, 1943, 153 Fla. 611, 15 So.2d 327.

We must assume therefore that the motion to quash was not granted for formal defects, but was granted because the trial court concluded that the information, on its face, did not charge a crime under the statute.

To have arrived at this conclusion the trial court must have found that the article was not obscene, or if obscene was not obscenity which would tend to corrupt the morals of youth.

As we read the statute involved here there are three essential elements necessary to be charged and proved. First is the printing, publishing, and distributing of the matter involved. This element is admitted by defendant in his motion to quash. Second is that the matter be obscene. Third, the obscene matter must be such as manifestly tends to corrupt the morals of youth.

This of necessity brings us to determine whether it can be said as a matter of law that the article was not obscene. To do this we are required to define the word obscene.

In Webster's New International Dictonary, 2nd Edition, p. 1681, we find the word defined as:

'1. Offensive to taste; foul; loathsome; disgusting.

'2. a Offensive to chastity of mind or to modesty; expressing or presenting to the mind or view something that delicacy, purity and decency forbid to be exposed; lewd, indecent; as obscene language, dances, images. b. * * *

'3. * * *'

The Century Dictionary, Vol. IV, p. 4062, definds the word as:

'1. * * *

'2. Offensive to the senses; repulsive; disgusting; foul; filthy; * * *.

'3. Offensive to modesty and decency; impure; unchaste; indecent; lewd; as, obscend actions or language; obscene pictures. * * *

'Obscene publication, in law, any impure or indecent publication tending to corrput the mind and to subvert respect for decency and morality. Syn. 3, immodest, ribald, gross.'

In State v. MacSales Co., Mo.App.1954, 263 S.W.2d 860, 863 the court said:

'* * * We have defined obscenity as 'such indecency as is calculated to promote the violation of the law and the general corruption of morals * * * and include what is foul and indecent, as well as immodest, or calculated to excite impure desires.' * * *'

The Supreme Court of Missouri in State v. Becker, 1954, 364 Mo. 1079, 272 S.W.2d 283 followed the definition last cited.

In United States v. Two Obscene Books, D.C.N.D.S.D.1951, 99 F.Supp. 760, 762 the court said:

'Our circuit has approved the simple standard that obscenity has 'the meaning of that which is offensive to chastity and modesty. * * *'.'

In King v. Commonwealth, 233 S.W.2d at page 523, supra, the court said:

"* * * The word obscenity cannot be said to be a technical term of the law and is not susceptible of exact definition in its judicial uses, although it has been defined in a general sense as meaning offensive to morality or chastity, indecent, or nasty. * * *"

In Davidson v. State, supra [19 Ala.App. 77, 95 So. 55], the court adopted the definition given in 3 Bouv. Law Dict., Rawle's Third Revision, p. 2396, which defines the word as "Something which is offensive to chastity; that which is offensive to chastity and modesty'.'

In Hallmark Productions, Inc., v. Mosley, supra, 190 F.2d at page 910, the court said:

'* * * one of the tests often used is whether it shocks the ordinary and common sense of men as an indecency. * * *'

Measured by the above definitions we are convinced that it cannot be said as a matter of law that the article is not obscene. Certainly the article is 'offensive to chastity of mind or to modesty'. The descriptions in the article create a picture by words which if presented in a photograph or drawing would clearly be obscene. In any event we must conclude that we could not say that the descriptions are so clearly...