State v. Miller

• Decision Date: 09 February 1960
• Docket Number: No. CC853,CC853
• Citation: 145 W.Va. 59,112 S.E.2d 472
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. I. MILLER, alias Pete Miller.

Page 472

112 S.E.2d 472

145 W.Va. 59

STATE of West Virginia v. I. MILLER, alias Pete Miller.

No. CC853.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 19, 1960.

Decided Feb. 9, 1960.

Syllabus by the Court.

1. An order of a circuit court acting as an intermediate appellate court reversing an order of an inferior court in a certified case, sustaining a demurrer to and motion to quash an indictment and certifying the questions arising thereon to the Supreme Court of Appeals, is not a final order and can be reviewed by this Court by certificate, under provisions of Code, 58-4-2.

2. A statute which makes it a misdemeanor to import, print, publish, sell or distribute obscene materials is unconstitutional, insofar as it undertakes to provide a standard of judging obscenity based on its tendency to corrupt the morals of youth, because it does not limit the distribution of such materials to youth but also includes the adult population.

3. A statute which makes it a misdemeanor to import, print, publish, sell or distribute obscene materials, tending to corrupt the public morals provides a proper standard for the entire population and does not violate the due process clauses of the State and Federal Constitutions.

4. 'A statute may contain constitutional and unconstitutional provisions which may be perfectly distinct and separable so that some may stand and the others will fall; and if, when the unconstitutional portion of the statute is rejected, the remaining portion reflects the legislative will, is complete in itself, is capable of being executed independently of the rejected portion, and in all other respects is valid, such remaining portion will be upheld and sustained.' Pt. 6, syllabus, State v. Heston, 137 W.Va. 375.

W. W. Barron, Atty. Gen., Paul E. Parker, Jr., Pros. Atty., H. Clare Hess, Asst. Pros. Atty., Fairmont, Giles D. H. Snyder, Asst. Atty. Gen., for plaintiff.

A. Blake Billingslea, Ross Maruka, Fairmont, for defendant.

BERRY, Judge.

This is a certified case from the Circuit Court of Marion County, having been certified to that Court by the Criminal Court of Marion County under the provisions of Code, 58-4-2.

The defendant, I. Miller, alias Pete Miller, was indicted in the Criminal Court of Marion County for distributing obscene pictures under the provisions of Code, 61-8-11. The indictment was in two counts. The first count charged Miller with distributing obscene pictures tending to corrupt the morals of youth and the second count charged him with distributing obscene pictures tending to corrupt the public morals, both charges being contained in the language of the statute upon which the indictment was based. The defendant filed a demurrer and amended demurrer to the indictment and moved to quash the same on the ground that the statute upon which the indictment was based violated the due process clauses of the Constitution of West Virginia, Article III, Section 10 and the Fourteenth Amendment to the Constitution of the United States. The Criminal Court of Marion County overruled the amended demurrer and motion to quash the indictment and certified the case to the Circuit Court.

The Circuit Court found that Chapter 61, Article 8, Section 11 of the Official Code of West Virginia, as amended, contravened Article III, Section 10 of the Constitution of West Virginia and the due process clause of the Fourteenth Amendment to the Constitution of the United States and is in whole and in every part unconstitutional and void, reversed the order of the Criminal Court of Marion County overruling the amended demurrer and motion to quash the indictment, sustained the amended demurrer and motion to quash the indictment and each count thereof and ordered the questions decided by the Circuit Court on its own motion to be certified to this Court.

After this Court docketed this case for hearing, the defendant filed a motion to dismiss, contending that the case was improperly docketed. It is the contention of the defendant that the order of the Circuit Court sustaining the defendant's amended demurrer and motion to quash is a final judgment and reviewable only by writ of error, under the provisions of Code, 58-5-30. The case of State v. O'Brien, 102 W.Va. 83, 134 S.E. 464, is cited by the defendant as authority to support his contention that this case could not be reviewed by this Court on certification.

It is true that the O'Brien case held that a judgment of the Circuit Court, after sustaining a demurrer to an indictment or to a warrant in a criminal case and quashing the warrant or indictment on the grounds of insufficiency where they are fatally defective, is a final judgment in either case and cannot be reviewed by this Court on certification, under the provisions of Code, 58-5-2, but must be reviewed by writ of error, as provided by Code, 58-5-30. However, in the O'Brien case the Circuit Court was acting as a trial court and was in the position of the Criminal Court of Marion County in the case at bar. The Circuit Court in the instant case was acting as an intermediate appellate court. The Criminal Court of Marion County overruled the amended demurrer and motion to quash the indictment and therefore its order was not final as was the order sustaining the demurrer in the O'Brien case. This case was certified to the Circuit Court under the provisions of Code, 58-4-2, which was placed in the Code in 1931 and provides for such certification. The O'Brien case was decided in 1926 and there was then no provision for such certification. The order of the circuit court reversing the criminal court's holding the statute as unconstitutional and certifying the questions to this Court was not a final order. It was an interlocutory order. See State v. Houchins, 96 W.Va. 375, 123 S.E. 185. When the Houchins case was decided in 1924, the statute providing for certification from an inferior court to the circuit court and from the circuit court to the Supreme Court on questions on pleading was not available, and it was held that this Court would not review such matters certified from inferior courts. See Atkinson v. Empire Savings & Loan Co., 108 W.Va. 425, 151 S.E. 173. This defect was remedied when the official Code of 1931 was adopted, and such procedure is now provided for by Code, 58-4-2.

The case of State v. Younger, 130 W.Va. 236, 43 S.E.2d 52, decided in 1947, cited by the defendant to support his contention that this case was improperly certified merely holds that where a circuit court acting as a trial court in a criminal case appealed from a justice of the peace court sustains a demurrer to a warrant, such order is a final order and is reviewable by a writ of error, as provided by Code, 58-5-30. This is in accord with the decision in the O'Brien case. No final order is reviewable by this Court on certification of questions arising from a demurrer. Saffel v. Woodyard, 90 W.Va. 747, 111 S.E. 768; Blue v. Hazel Atlas Glass Co., 93 W.Va. 717, 117 S.E. 612; State by Prosecuting Attorney of Raleigh County v. Crockett, 94 W.Va. 423, 119 S.E. 165. The case of State v. Holesapple, 116 W.Va. 19, 178 S.E. 280, which was decided in 1935, is a case in which an inferior court, the intermediate court of Kanawha County, certified a case to the Circuit Court of Kanawha County and the Circuit Court of Kanawha County certified the case to this Court under the provisions of Code, 58-4-2. The certification by both the intermediate and the circuit court was considered as proper and was not questioned. It was held, however, that where pleading has been disposed of by proof the questions arising thereunder cannot be certified. It can only be done where a demurrer is filed to a pleading testing the sufficiency thereof and no proof taken. It is therefore clear that the order of the Circuit Court of Marion County reversing the order or judgment of the Criminal Court of Marion County was not a final order, and in the language of the statute, the proceedings in the case were merely stayed until disposition is made of the questions involved in the case certified. Code, 58-4-2. The defendant's motion to dismiss this certified case on the ground that it was improperly docketed is overruled.

We now come to the main question involved in this certified case, and that is, whether the statute under which the indictment was drawn violates the provisions of Article III, Section 10 of the Constitution of West Virginia and the Fourteenth Amendment to the Constitution of the United States. The statute in question, Code, 61-8-11, reads as follows:

'If any person import, print, publish, sell or distribute any book or other thing containing obscene language, or any print, picture, figure or description manifestly tending to corrupt the morals of youth, or tending to corrupt the public morals, or introduce into any family, school or place of education, or buy or have in his possession, any such thing, for the purpose of sale, exhibition or circulation, or with intent to introduce it into any family, school or place of education, he shall be guilty of a misdemeanor, and, upon conviction, shall be confined in jail not more than one year and fined not exceeding one thousand dollars.'

This statute was taken from Virginia where it was first enacted in 1849, and was contained in our Codes in practically the same language in which it was first enacted until 1931, when the revisers of the Code added the words 'or tending to corrupt the public morals' for the reason that the statute was not sufficiently broad to include the public morals, and also increased the maximum fine. These changes were enacted into the law by the legislature of this State in 1931 and have been a part of the Code since that time. Without the addition referred to above, this statute is practically the same as the statute contained in the Michigan Penal Code, § 343, Comp.Laws Supp.1954, § 750.343, and the Code of Virginia, § 18-113, relative to the corruption of the...