State v. Hill

• Decision Date: 15 February 1906
• Citation: 62 A. 936,73 N.J.L. 77
• Parties: STATE v. HILL.
• Court: New Jersey Supreme Court

62 A. 936

73 N.J.L. 77

STATE

v. HILL.

Supreme Court of New Jersey.

Feb. 15, 1906.

(Syllabus by the Court.)

Error to Court of Quarter Sessions, Essex County.

George Hill was convicted of crime, and brings error. Affirmed.

Argued June term, 1905, before the CHIEF JUSTICE, and FORT, PITNEY, and REED, JJ.

Thomas S. Henry, for plaintiff in error. Henry Young, for the State.

REED, J. This writ of error brings up a judgment entered upon a conviction of the plaintiff in error for a violation of section 53 of the Crimes Act of 1898 (P. L. 1898, p. 808). This section provides that any person who, without just cause, shall utter or expose to the view of another, or have in his possession with intent so to utter or expose to view or to sell the same, any obscene or indecent book, pamphlet, picture, etc., shall be guilty of a misdemeanor. The indictment charged that George Hill did without just cause utter and expose to the view of two persons two obscene pictures.

The counsel for the plaintiff in error asserts that the indictment is defective in charging two distinct offenses, namely, the offense of uttering and also the offense of exposing to view two indecent pictures. If this insistence possessed any substance, it is urged at a stage of the case too late to be cognizable by this court. Larison v. State, 49 N. J. Law, 258, 9 Atl. 700, 60 Am. Rep. 606. But this objection is entirely without substance. The offense of uttering and that of exposing to view could each have been charged in a distinct count. But it is not essential to the validity of the indictment that they should have been so charged. The rule is entirely settled that, if a statute makes it a crime to do this or that, mentioning several things disjunctively, the indictment may, as a general rule, embrace the whole in a single count; but it must use the conjunctive "and" where "or" occurs in the statute, else it will be defective as being uncertain. Bish. Cr. Pro. § 581; People v. Davis, 56 N. Y. 95-101; Comm. v. Grey, 2 Gray, 501, 61 Am. Dec. 476; State v. Price, 11 N. J. Law, 203-215. There are doubtless instances where the offenses disjunctively set out in a statute are so dissimilar in substance that a separate count for each may be necessary. But the offenses created by the statute now under consideration are not of this kind. The acts mentioned in section 53, supra, all belong to the same transaction, each one of which may be considered as representing a phase of the same offense. They could therefore, with entire propriety, be included in one count. State v. Bartholomew, 69 N. J. Law, 162, 54 Atl. 231.

Our attention is next directed to the fact that there was a general verdict of guilty. It is insisted that there was no evidence sufficient to support a verdict for either uttering or exposing to view; and it is further pressed that, if only an exposure to view is proven and not an uttering also, the offense charged is unproven, and judgment should be reversed. The testimony supporting the charges was this, namely: The defendant, Hill, was in a room where there was a book lying upon a bureau. In the book were the indecent pictures. Hill pointed to this book and said to Deering, whom Hill had previously promised to show some pictures: "There they are. There are the pictures on the bureau. When you get through with them turn the gas down low." Deering went over to the bureau, or table, picked up the book and looked at the pictures. In the meantime Hill had gone into another room, but returned just as Deering, after examining the pictures, started to leave the room. Deering then asked Hill what he would charge for one of the pictures. Hill said that he would not sell it. If the jury believe this testimony, it could draw the conclusion that Hill exposed to the view of Deering the pictures, within the meaning of the stature. It is true that Hill did not himself open the book in which the pictures were concealed. But he directed Deering to where the pictures were, and invited him by his words and conduct to inspect them. Hill was the exhibitor on this occasion. If he had taken Deering into a gallery of lewd pictures each covered by a veil, and had told Deering that there were the pictures for his inspection, it would matter nothing that Deering himself pulled aside the veils in making his examination. Hill would still be the showman. He would be the one who, in the language of the statute, exposed the pictures to view. So, in the present...