State v. Hayward

• Decision Date: 31 October 1884
• Parties: THE STATE v. HAYWARD, Appellant.
• Court: Missouri Supreme Court

83 Mo. 299

THE STATE

v.HAYWARD, Appellant.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Hannibal Court of Common Pleas.--HON. THEO. BRACE, Judge.

REVERSED.

W. H. Russell and R. E. Anderson for appellant.

(1) The information is insufficient in form because verified only by the oath of a private citizen and not by the oath of the prosecuting attorney. Con. of Mo., art. 2, § 12; State v. Kelm, 79 Mo. 515; R. S., 1879, §§ 1762, 1764, 2025. (2) The information is defective in substance. That the information in such a case as this must either set out the language charged to be obscene or aver as a reason for not doing so, that it is too obscene to defile the records of the court, is settled by an overwhelming weight of authority; and the current of decisions to that effect in this country and in England is unbroken by a single adverse case. Wharton's Cr. Pl. & Ev. (8th Ed.) § 177; Com. v. Tarbox, 1 Cush. 66; Com. v. Holmes, 17 Mass. 336; U. S. v. Carll, 105 U. S. 611; U. S. v. Loftis, 8 Sawyer C. C.; U. S. v. Kaltmeyer, 16 Fed. Rep. 760; U. S. v. Gaylord, 17 Fed. Rep. 435; Stener v. State,(Wis.) 17 Reporter 670; Bish. on Cr. Proc. (2 Ed.) §§ 496, 497, 561; Heard's Cr. Pleading, pp. 202, 208, 209, 211; Bradlaugh v. Regina, E. L. R., 3 Q. B. D. 605; State v. Hanson, 23 Tex. 232; State v. Pepper, 68 N. C. 259; Wharton's Cr. Pl. & Pr. (8th Ed.) § 220, 221; Heard's Cr. Pl., pp. 162, 163, 165, 166; State v. Weldon, 70 Mo. 573; State v. Davis, 70 Mo. 467; State v. Fisher, 58 Mo. 256; State v. Fay, 65 Mo. 492; State v. Rocheforde, 52 Mo. 200; State v. Hein, 50 Mo. 362; State v. Keel, 54 Mo. 188; State v. Garner, 28 Mo. 90, 91; State v. Evers, 49 Mo. 545.

Geo. A. Mahan, prosecuting attorney, and Thos. H. Bacon for the State.

(1) As in a prosecution for a criminal libel the constitution makes the truth an issuable defence (Art. II, sec. 14) the statute against circulating all obscene publications creates a statutory offence, not a criminal libel, and, therefore, not an obscene libel. Moreover the possession of an obscene publication with intent to circulate is not a common law offence. Dugdale v. Regina, 1 Ellis & Blackburn 435; S. C. 10 Eng. L. & E. 380. And, therefore, the statute on this subject creates the offence. (2) This offence inheres not, as in case of obscene libel, in special language or representation, but in the quality of a book or pamphlet as obscene; the indictment may simply identify the pamphlet as in this case by its title the same as any instrument. R. S. 1879, sec. 1816. The only requirement is that the pamphlet be sufficiently described and this was done. As the statute does not require the pamphlet to contain language, the indictment need not aver it or specify any language as used. (3) The principal American statutes address themselves to “obscene language.” R. S., Mass., 1836, p. 130, § 10; R. S., Vermont, 1839-50, ch. 108, p. 561. In Missouri and Illinois the statute is leveled generally at “obscene pamphlets.” In the latest case ( Fuller v. The People, 92 Ill. 182) the court held good an indictment in the language of such statute. State v. Mitchell, 6 Mo. 147; State v. Presbury, 13 Mo. 345; State v. Goss, 74 Mo. 592; State v. Bregard, 76 Mo. 322.

SHERWOOD, J.

This prosecution was instituted before N. Dick, recorder and ex-officio justice of the peace, with whom was filed the following information:

STATE OF MISSOURI,

)

)

ss.

County of Marion.

)

Before Nathaniel Dick, Recorder of the City of Hannibal and ex-officio Justice of the Peace within and for the City of Hannibal in Mason township, Marion County, Missouri.

State of Missouri, Plaintiff,

)

against

)

John T. K. Hayward, John

)

J. Cruikshank, Jr., James

)

Hayward, defendants.

)

George A. Mahan, prosecuting attorney of Marion county, Mo., comes and informs the court that on the 31st day of January, 1880, at the city of Hannibal in Mason township, Marion county, Mo., defendants, John T. K. Hayward, John J. Cruikshank, Jr., and James Hayward, did then and there unlawfully, wilfully and maliciously manufacture, print, publish and have in their possession with intent then and there to circulate obscene, lewd and licentious pamphlets entitled, “The Case of C. O. Godfrey,” a publication of an indecent and scandalous character, against the peace and dignity of the state.

And the said Geo. A. Mahan further informs the court that on or about the 31st day of January, 1880, at the city of Hannibal, in Mason township, Marion county, Mo., the said John T. K. Hayward, John J. Cruikshank, Jr., and James Hayward, did then and there unlawfully, wilfully and maliciously give away, distribute and circulate obscene, lewd and licentious pamphlets entitled, “The Case of C. O. Godfrey,” a publication of an indecent and scandalous character, against the peace and dignity of the state.

GEO. A. MAHAN,

Prosecuting Attorney.

Thomas H. Bacon, being sworn, says that the facts set forth in the above information are true, as therein contained, to the best of his information and belief.

THOMAS H. BACON.

Subscribed and sworn to before me on the 6th day of February, 1880.

N. DICK.

Recorder C. H., and ex-officio J. P. within the city of Hannibal, Mason township, Mo.

Filed February the 6th, 1880.

On change of venue had the cause was tried before Burr F. McPherson, a justice of the peace, resulting in a verdict of guilty against the defendant. Taken by appeal to the Hannibal court of common pleas the cause was again tried before the judge of that court, no jury being called, resulting in a similar finding and the defendant appealed here.

I. The information in this cause as already seen was verified by the oath of a private citizen. This is in terms permitted by section 1762, Revised Statutes, 1879, and in this case the form of verification accords with the form laid down in section 1764. But it will be seen that while section 1762, just referred to, requires that the information “be signed by the prosecuting attorney and be verified by his oath, or by the oath of some person competent to testify as a witness in the case, or be supported by the affidavit of such person, which shall be filed with the information,” yet permits that the “verification by the prosecuting attorney may be upon information and belief.” It thus becomes apparent that it is only where the verification is made by the prosecuting attorney that it can be based in fact and made in form “upon information and belief.” This is an instance where the maxim expressio unius applies; for the legislature by singling out the prosecuting attorney and permitting him to verify the information in a particular way obviously intended that he alone should verify in that way. This view is borne out not only by resort to and application of the maxim cited, but also by the other portions of the section already quoted, showing in unmistakable and unequivocal terms that the verification when made by an unofficial person, whether by oath or affidavit, must be by “some person competent to testify as a witness in the case.”

This view is also confirmed by section 1763, where the person who may make an affidavit which is to be the preparatory step in the prosecution, is defined as “any person who has knowledge of the commission of any misdemeanor.” This view also finds support in section 2028, where an information filed with a justice of the peace, must be “verified by the oath or affidavit of a person competent to testify against the accused or by the prosecuting attorney.” This view is also in harmony with the practice which prevails in England, where a prosecutor might, by making the proper basis, obtain a rule against an accused person to show cause why an information should not be filed against him for a misdemeanor. But in such case no rule would go unless the evidence were of such directness as would, uncontradicted, establish the offence beyond doubt. 1 Chit. Cr. L., 856, 857; Rex v. Williamson, 3 B. & Ald. 582; Rex v. Bull, 1 Wilson 93; Rex v. Willett, 6 T. R. 294; Reg. v. Baldwin, 8 A. and E. 168. Our legislature seems to have thrown the same safeguard around the citizens of this state and to have effectually prevented them from being prosecuted by information for a misdemeanor, where a private citizen is the mover of such prosecution, except where he has knowledge of the matters set forth in the information, is a competent witness to testify against the accused and verifies the information in a direct manner. For this reason the information should be held not verified as required by law.

II. I will now consider the sufficiency of the information itself. It is evidently framed under section 1542, Revised Statutes, 1879, relative to obscene literature, its sale, circulation, publication, etc. It will be observed that the information does not set out the obscene matter of the pamphlets, nor does it give any excuse for failing to do this; but the drawer of the information has been content to follow the general language of the statute. In many cases it will do to charge the offence in the language of the statute, “to follow the language of the statute,” as it is frequently said. But this rule only applies where all the facts which constitute the offence are set forth in the statute. State v. Kesslering, 12 Mo. 565; State v. Davis, 70 Mo. 467. Shaw, C. J., in Tulley v. Commonwealth, 4 Met. 358, observes: “When the statute punishes an offence by its legal designation, without enumerating the acts which constitute it, then it is necessary to use the terms which technically charge the offence named at common law. But we think this is not necessary when the statute describes the whole offence and the indictment charges the crime in the words of the statute.” Mr. Wharton, treating of this subject, says: “On the general principles of common law pleading, it may be said that it is sufficient to frame the indictment in the words of the statute, in all cases where the statute so far individuates the offence that the offender has proper notice,...