State v. Holedger
| Citation | 46 P. 652,15 Wash. 443 |
| Court | United States State Supreme Court of Washington |
| Decision Date | 06 November 1896 |
| Parties | STATE v. HOLEDGER. |
Appeal from superior court, Spokane county; Norman Buck, Judge.
Frank Holedger appeals from a conviction. Affirmed.
Fenton & Saunders and James L. Crotty, for appellant.
J. W Feighan, for respondent.
The appellant was indicted for the crime of publishing, editing and selling obscene and indecent literature in Spokane county, Wash. The essential part of the information was as follows: "Frank Holedger is hereby charged with the crime of publishing, editing, and selling obscene and indecent literature, committed as follows, to wit: That on the 12th day of January, A. D. 1895, at the county of Spokane, and state of Washington, Frank Holedger, then and there being, did then and there knowingly, unlawfully maliciously, scandalously, and feloniously compose, edit print, sell, distribute, and offer for sale and distribution a certain lewd, scandalous, obscene, and indecent newspaper of the date of January 12, 1895, commonly known as the 'Spokane Sunday Sun,'-contrary to the statute," etc. To this information a demurrer was interposed on the following grounds: (1) That the said information does not substantially conform to the requirements of the Code of Washington; (2) that the facts charged in the information do not constitute a crime. The appellant relies upon the statute which provides that the indictment or information must be direct and certain as it regards (1) the party charged, (2) the crime charged, (3) the particular circumstances of the crime charged, when they are necessary to a complete crime, as specified in section 1236, vol. 2, of Hill's Code, and§ 1238, Id., which provides that "the indictment or information must charge but one crime and in one form only, except that where the crime may be committed by the use of different means, indictment or information may allege the means in the alternative." It is urged by the appellant that the facts charged in this information do not constitute a crime; that the words, "knowingly, unlawfully, maliciously, scandalously, and feloniously," as used in the information, qualify the acts, "compose, edit, print, sell, distribute, and offer for sale and distribution"; that the information should allege that the defendant not only knowingly, unlawfully, scandalously, and feloniously composed, edited, printed, etc., a certain lewd, scandalous, obscene, and indecent newspaper, but that he should have done some one of these acts with the knowledge that the said paper was scandalous, obscene, and indecent; that the scienter or guilty knowledge is one of the principal ingredients of this offense. The statute upon which this information is based is section 205 of the Penal Code, and is to the effect that: "If any person shall import, print, publish, sell, rent, give away, distribute or show, or have in his possession, with intent to sell or give away or to show or advertise or otherwise offer for loan, gift, sale and distribution, any obscent or indecent book, magazine, pamphlet, newspaper, story-paper, writing-paper, picture, engraving, drawing or photograph, or if any person shall design, copy, draw, photograph, utter, publish or otherwise prepare any article mentioned in this section, or shall write or print or cause to be written or printed," etc., "he shall be punished," etc. The appellant has cited a number of cases in support of this contention, but we do not think, from an investigation of them, that they are in point so far as this particular kind of a crime is concerned. For instance, in the case of Com. v. Boynton, 12 Cush. 499, where an indictment charged that the defendant "did knowingly sell unto one Jeremiah Barker a certain piece of diseased, corrupted, and unwholesome provision, to wit, one hind leg of veal, the said Boynton not then and there making known fully to said Barker that the same was diseased, corrupted, and unwholesome," etc., the indictment was held bad, and the court rightfully held that the guilty knowledge or evil intent of a party in selling meat was the foundation of the indictment; and it might very well happen that a person engaged in the business of selling meat would knowingly sell it, and of course he would knowingly sell it if he sold it at all, without knowing that it was diseased meat; and in a case of that kind, as a matter of course, the allegation of the knowledge that the meat was diseased would be necessary. But this is not a kindred proposition, for here the appellant is charged with knowingly, unlawfully, maliciously, scandalously, and feloniously composing, editing, printing, selling, distributing, and offering for sale, etc., a certain lewd, scandalous, obscene, and indecent newspaper. If one can edit and compose a publication without knowledge of its obscene character being conclusively presumed, then it would be idle to allege knowledge of its obscene character, because there would be no way of proving that he did have such knowledge. Such knowledge must be conclusively presumed from the fact of his editing and composing the publication, and we have no doubt that a person of reasonable understanding could readily determine what he was charged with by the knowledge conveyed in this information.
The other contention-that more than one crime is charged in the indictment-we think is clearly without...
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