State v. Hungerford
| Decision Date | 07 May 1973 |
| Docket Number | No. 52538,52538 |
| Citation | 278 So.2d 33 |
| Parties | STATE of Louisiana, Appellant, v. Lawrence HUNGERFORD, Appellee. |
| Court | Louisiana Supreme Court |
Michael Silvers, New Orleans, for appellant.
William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Jim Garrison, Dist. Atty., Louise Korns, Asst. Dist. Atty., for appellee.
The defendant Hungerford is charged with five violations of the obscenity statute. La.R.S. 14:106. After a trial before a judge, he was found guilty of all five counts and sentenced to pay a fine of three hundred dollars or serve sixty days in the Parish Prison as to each count, for a total of fiteen hundred dollars or three hundred days.
In our examination of the pleadings and proceedings below, we have found that the trial court imposed an illegal sentence. This requires us to remand the case for sentencing in accordance with the law. La.C.Cr.P. Art. 882.
The bill of information in this case contained five counts, each charging the defendant with obscenity. They involved the simultaneous exhibition (for sale) of five allegedly obscene pictures or magazines on August 5, 1971.
Prior to trial, defense counsel filed a motion for trial by jury on the basis that, since the defendant was subject to conviction for five offenses of obscenity, he would be subject to a maximum penalty exceeding six months and/or five hundred dollars. Thus, he argues, he was not charged with a 'petty offense' as delineated in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), and he was entitled to a trial by jury. See also, La.C.Cr.P. Art. 779. The trial court denied this motion for trial by jury.
In denying the motion for jury trial, the trial court apparently concluded that five separate offenses of obscenity were charged, no one of which could be punished by sentence in excess of five hundred dollars or six months. La.R.S. 14:106. However, La.C.Cr.P. Art. 493 provides: 'No indictment shall charge more than one offense, except as otherwise provided in this Title, 1 but the same offense may be charged in different ways in several counts.' Hence, the information (indictment) here simply charged one offense of obscenity, with this same offense being charged in five different ways.
The act of the defendant in simultaneously possessing five periodicals or books allegedly obscene did not amount to five offenses, nor to perhaps as many offenses as there were pages in each of the magazines or books. The simultaneous possession of the five items amounted to a single violation of La.R.S. 14:106, but charged in five counts.
The charge against the defendant is that on August 5, 1971, he 'did wilfully and unlawfully exhibit and display obscene . . . magazines and pictures . . . with intent to primarily appeal to the prurient interest of the average person'. The intent is to prosecute the exhibition of material alleged to be pornographic, La.R.S. 14:106, subd. A(2), or possession of it with intent to exhibit it, La.R.S. 14:106, subd. A(3). In either event, the exhibition and possession of the five items constituted a single act and a single offense. Cf., State v. Bonfanti, 262 La. 153, 262 So.2d 504 (1972).
Under similar circumstances, we have reached the same result in State v. Johnson and New Orleans Book Mart, Inc., La., 278 So.2d 84 (decided March 8, 1973) and State v. Todd, La., 278 So.2d 36.
By imposing a total fine of fifteen hundred dollars and imprisonment, which, in default of payment totalled three hundred days, the trial court imposed an illegal sentence, inasmuch as the maximum fine for one offense of obscenity is five hundred dollars and six months. La.R.S. 14:106, subd. D.
For the reasons assigned, the case is remanded to the district court for resentencing in accordance with law.
SANDERS, C.J., dissents for the reasons assigned by SUMMERS, J.
SUMMERS, J., dissents for the reasons assigned.
Hungerford is charged by five counts of a bill of information with five crimes of obscenity as defined by Article 106 of our Criminal Code. Obviously preferring to be tried on all five offenses at one time on the chance of five acquittals, the accused elected to go to trial. He was found guilty of all five offenses, sentenced to pay a fine of three hundred dollars or serve sixty days in the parish prison as to each count, a total of fifteen hundred dollars.
The definition of obscenity relevant to this charge provides:
Obscenity is the intentional . . . exhibition, . . . or advertisement with the intent to primarily appeal to the prurient interest of the average person, of any lewd, lascivious, filthy or sexually indecent written composition, printed composition, book, Magazine, pamphlet, . . . writing . . . picture, drawing . . . or any written, printed or recorded matter of sexually indecent character . . . (La.R.S. 14:106, subd. A(2)).
The pertinent maximum penalty for obscenity is a fine of $500 or imprisonment for not more than six months, or both.
The bill of information charges in each of he five offenses the willful and unlawful exhibition and display of obscene, lewd, lascivious, filthy and sexually indecent magazines and pictures at 131 S. Rampart Street, New Orleans, Louisiana, on August 5, 1971.
Although the date and place are the same, significantly each offense refers to an entirely different magazine. They were: 'Other Love Vol. 2', 'History of Sex in America Vol. 1', 'Adult Sex Hangups Vol. 2', 'Adult Sex Hangups Vol. 3' and 'The Sexual Fantasies Vol. 2'.
Contrary to the conclusion reached by the majority, there is no refernce to the point in time on August 5, 1971 when these exhibitions took place. It is an assumption not warranted by the indictment on its face, therefore, to conclude that the displays were 'simultaneous.'
In my view display of each of the books or magazines was itself, alone, an offense. Quite possibly one book would be obscene and another not. Actually each was of considerable length and principally devoted to a different approach to promoting the grossest sort of sexual perversion, in fact mostly bestiality. Under no standard can these publications elude the definition of obscene. Considering the the guilt or innocence determination was to be made on the basis of separate publications, the offenses are separate on that basis.
In addition, although it does not appear from the bill of information when, on August 5, 1971, these publications were displayed, it is entirely possible that an appreciable difference in time could have elapsed between the display of one publication and the display of another--one early in the morning, another late at night.
And to carry the matter even further, although the indictment refers to the exhibition having been made at one municipal address, conceivably exhibition within those premises might be at entirely...
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