State v. Mapp, 36091

Decision Date23 March 1960
Docket NumberNo. 36091,36091
Citation166 N.E.2d 387,170 Ohio St. 427
Parties, 11 O.O.2d 169 STATE of Ohio, Appellee, v. MAPP, Appellant.
CourtOhio Supreme Court

Syllabus by the Court.

1. Assuming the constitutional validity of the part of Section 2905.34, Revised Code, which prohibits any person from knowingly having in his possession or under his control lewd or lascivious books and pictures, a defendant may be convicted thereunder where the evidence discloses that, in packing up the belongings of a former roomer in such defendant's home, such defendant found lewd and lascivious books and pictures and packed them with such former roomer's other belongings for the purpose of storing them for him until he came for them.

2. A conviction thereunder may be valid although that conviction is based primarily upon the introduction in evidence of lewd and lascivious books and pictures unlawfully seized during an unlawful search of defendant's home, where it does not appear that such evidence was taken from defendant's person by the use of brutal or offensive force against defendant. (State v. Lindway, 131 Ohio St. 166, 2 N.E.2d 490, followed.)

3. Where a majority of less than six members of the Supreme Court are of the opinion that the portion of a statute upon which a conviction is based is unconstitutional and void but no other reversible error appears in the record, a judgment of the Court of Appeals sustaining such conviction must be affirmed. (Section 2 of Article IV of the Constitution applied.)

Defendant was indicted for 'unlawfully and knowingly' having 'had in her possession and under her control, certain lewd and lascivious books, pictures and photographs.'

This indictment was based upon Section 2905.34, Revised Code, which reads in part:

'No person shall knowingly * * * have in his possession or under his control an obscene, lewd, or lascivious book * * * print, [or] picture * * *

'Whoever violates this section shall be fined not less than two hundred nor more than two thousand dollars or imprisoned not less than one nor more than seven years, or both.'

The verdict of the jury found the defendant 'guilty of possession of obscene literature as charged in the indictment.' Defendant's motion for a new trial was overruled and the Common Pleas Court rendered judgment sentencing defendant to imprisonment in the Ohio Reformatory for Women for an indeterminate period. *

On appeal to the Court of Appeals, that judgment was affirmed.

The cause is now before this court on appeal from the judgment of the Court of Appeals.

A. L. Kearns, Cleveland, for appellant.

John T. Corrigan, Pros. Atty., and Gertrude Bauer Mahon, Cleveland, for appellee.

TAFT, Judge.

The books and pictures in evidence in the instant case clearly represent, and the undisputed evidence in the record indicates, that defendant knew at the time she is charged with having possessed them that they represented lewd and lascivious books and pictures. However, defendant contends that they were not 'in [her] possession or under [her] control' within the meaning of the words of Section 2905.34, Revised Code.

Defendant offered evidence to prove that these books and pictures belonged to a man who had rented from her and occupied a room in her home; that, when she learned he was not going to return or use the room for the balance of the last month for which he had rented it, she decided to use the room for herself and to pack up his belongings and store them until he came for them; that, in doing so, she found these lewd and lascivious books and pictures and packed them in a box and one of her suitcases with his other belongings with the purpose of storing them until he came for his belongings; and that she never looked at these books and pictures again before they were seized by the police.

In our opinion, this evidence of defendant establishes that she had these books and pictures 'in * * * [her] possession or under * * * [her] control' within the meaning of those words as used in Section 2905.34, Revised Code.

Her evidence clearly discloses that defendant not only took possession and control of the room which she had rented but also of the belongings of her former tenant, including the books and pictures which the undisputed evidence shows that she knew to be lewd and lascivious.

Hence, it follows that, if the portion of Section 2905.34, Revised Code, that was applied in the instant case, is not unconstitutional and void, then, even if we assume that there were errors in the trial court's charge as defendant argues, such errors could not have prejudiced defendant. It becomes necessary therefore to consider whether the constitutional questions raised require a reversal of the judgment under review.

Defendant contends that the due process clause of the 14th Amendment ot the Constitution of the United States was violated by her conviction for possession and control of these books and pictures since that conviction was based primarily upon their unlawful seizure from her during an unlawful search of her home.

There is, in the record, considerable doubt as to whether there ever was any warrant for the search of defendant's home. No warrant was offered in evidence, there was no testimony as to who issued any warrant or as to what any warrant contained, and the absence from evidence of any such warrant is not explained or otherwise accounted for in the record. There in nothing in the record tending to prove or from which an inference may be drawn, and no one has even suggested that any warrant that we may assume that there may have been described anything other than policy paraphernalia as things to be searched for. Our statute (Section 2933.24, Revised Code) requires a search warrant to 'particularly describe the things to be searched for.' See also Section 2905.35, Revised Code. Our Constitution (Section 14 of Article I) specifically forbids the issuance of any such warrant except 'upon probable cause, supported by oath or affirmation, particularly describing the place to be searched * * * and things to be seized.' Admittedly therefore there was no warrant authorizing a search of defendant's home for any 'lewd, or lascivious book * * * print, [or] picture.'

However, this court has held that evidence obtained by an unlawful search and seizure is admissible in a criminal prosecution. State v. Lindway, 131 Ohio St. 166, 2 N.E.2d 490 (appeal dismissed and certiorari) denied 299 U.S. 506, 57 S.Ct. 36, 81 L.Ed. 375); and the Supreme Court of the United States has held that the Constitution of the United States does not usually prevent a state court from so holding. Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138. Subsequently, in Rochin v. People of State of California, 342 U.S. 165, 72 S.Ct. 205, 210, 96 L.Ed. 183 25 A.L.R.2d 1396, that court held that a conviction, obtained primarily by introducing in evidence narcotics seized not only during an illegal search but by means of a physical assault upon the defendant, violated the due process clause. Although there are statements in the majority opinion in that case which will support a reasonable argument that the conviction in the instant case should be set aside because the 'methods' employed to obtain the books and pictures were such as to 'offend 'a sense of justice," later decisions have refused to follow that case in instances not involving the acquisition of incriminating evidence by the use of "brutal' or 'offensive" physical force against the person of the defendant. Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448. See also Irvine v. People of State of California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561 (evidence obtained by use of microphone illegally placed in defendant's home). Annotations 93 L.Ed. 1797, 96 L.Ed. 145, 98 L.Ed. 581, 100 L.Ed. 239, 50 A.L.R.2d 531. There is no evidence that any of the incriminating evidence in the instant case was taken from defendant's person by the use of brutal or offensive physical force against defendant.

Hence, we conclude that, if the portion of Section 2905.34, Revised Code, applied in the instant case is valid, the due process clause of the 14th Amendment to the Constitution of the United States was not violated by defendant's conviction, although that conviction was based primarily upon the introduction in evidence of books and pictures unlawfully seized during an unlawful search of defendant's home.

The constitutionality of the regulation of obscene literature is considered in a recent annotation in 1 L.Ed.2d 2211. That annotation does not indicate that there is any case decided by a court of last resort, and we can find none, considering the validity of a legislative prohibition against a mere knowing possession of lewd books and pictures. In most instances of legislation prohibiting possession of such articles, possession is prohibited, as it was under Section 2905.34, Revised Code (formerly Section 13035, General Code), prior to its amendment in 1939, where such possession is for the purpose of sale lending, giving away, exhibiting or publishing. Under our statute as now worded, mere possession is forbidden even where the possessor does not have a purpose of again looking at the books or pictures; and, in the instant case, the jury could have found the defendant guilty and she could have been (as she was) sentenced as a felon, even though it believed her evidence that she had innocently acquired possession of these articles, had no intention of ever looking at them again and was merely keeping them pending instructions for their disposition from their owner. Cf. Lambert v. People of State of California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228; Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793.

If, as defendant's evidence discloses, defendant took possession and control of these books and pictures when she took...

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