State v. Ross, No. 40743
| Court | United States State Supreme Court of Ohio |
| Writing for the Court | PAUL W. BROWN; TAFT; SCHNEIDER |
| Citation | 12 Ohio St.2d 37,231 N.E.2d 299 |
| Docket Number | No. 40743 |
| Decision Date | 22 November 1967 |
| Parties | , 41 O.O.2d 220 The STATE of Ohio, Appellant, v. ROSS, Appellee. |
Page 37
v.
ROSS, Appellee.
Syllabus by the Court
Where a criminal statute does not clearly make a certain specific intent an element of the offense, but judicial interpretation has made such intent a necessary element, an indictment charging the offense solely in the language of the statute is insufficient. (Sections 2941.05 and 2905.34, Revised Code.)
Page 38
On February 25, 1966, the defendant, Ross, appellee herein, was indicted for possessing obscene photographs in violation of Section 2905.34, Revised Code. The pertinent parts of this statute provide that '(n)o person shall knowingly * * * have in his possession or under his control an obscene, lewd, or lascivious * * * photograph * * *.'
The indictment reads as follows:
'The Grand Jurors of the county of Hamilton, in the name and by authority of [231 N.E.2d 300] the state of Ohio, upon their oaths present that William Gaylord Ross on or about the eleventh day of January in the year nineteen hundred and sixty six at the county of Hamilton and state of Ohio, aforesaid, did unlawfully and knowingly have in his possession or under his control obscene, lewd and lascivious photographs, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Ohio.'
The defendant demurred to this indictment on the ground that it failed to state a crime in that it did 'not allege that the defendant was possessed of obscene photographs with a malicious intent to disseminate the same.' The Court of Common Pleas sustained the demurrer on this ground and the Court of Appeals affirmed that order.
The appellant state is now before this court pursuant to the allowance of a motion for leave to appeal and it seeks reversal of the judgment of the Court of Appeals, vacation of the order sustaining the demurrer, and remand for further proceedings on the indictment.
Melvin G. Rueger, Pros. Atty., and Fred J. Cartolano, Cincinnati, for appellant.
Allen Brown, Cincinnati, for appellee.
PAUL W. BROWN, Judge.
The problem underlying this case is that the language of the statute used in the indictment has been judicially limited, and this limitation is not apparent from the language itself. The crime is not to knowingly possess or control obscene material, but rather it is to do so with the guilty intention of using, exhibiting, or selling it wrongfully. State v. Jacobellis, 173 Ohio St. 22, 179 N.E.2d 777, reversed on other grounds, Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793; State v. Saylor, 6 Ohio St.2d 139, 216 N.E.2d 622. This mens rea
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requirement was inferred by reading the language in context with the rest of the statute, and the motivation behind the inference was undoubtedly the preservation of language of otherwise questionable constitutionality. State v. Mapp. 170 Ohio St. 427, 433, 166 N.E.2d...To continue reading
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City of Cincinnati v. Hoffman, No. 71-424
...84 S.Ct. 1676, 12 L.Ed.2d 793; State v. Saylor (1966), 6 Ohio St.2d 139, 216 N.E.2d 622. Thus, the syllabus of State v. Ross (1967), 12 Ohio St.2d 37, 231 N.E.2d 299, which was before this court upon a demurrer to an indictment, 'Where a criminal statute does not clearly make a Page 173 cer......
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Stanley v. Georgia, No. 293
...793 (1964). The interpretation was designed to avoid the constitutional problem posed by the 'dissenters' in Mapp. See State v. Ross, 12 Ohio St.2d 37, 231 N.E.2d 299 (1967). Other cases dealing with nonpublic distribution of obscene material or with legitimate uses of obscene material have......
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City of Youngstown v. DeLoreto
...intent a necessary element, an indictment charging the offense solely in the language of the statute is insufficient. State v. Ross, 12 Ohio St.2d 37, 231 N.E.2d 299; State v. Potts, 16 Ohio St.2d 111, 243 N.E.2d We have had the issue of the omission of a material element of a crime in an a......
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State v. Kasnett, No. 689
...(1964), 176 Ohio St. 482, 200 N.E.2d 590; State v. Healy (1951), 156 Ohio St. 229, 102 N.E.2d 233. See, however, State v. Ross (1967), 12 Ohio St.2d 37, 231 N.E.2d The Supreme Court of The state of Washington, in State v. Turner (1970), 78 Wash.2d 276, 474 P.2d 91, has stated with respect t......
-
City of Cincinnati v. Hoffman, No. 71-424
...84 S.Ct. 1676, 12 L.Ed.2d 793; State v. Saylor (1966), 6 Ohio St.2d 139, 216 N.E.2d 622. Thus, the syllabus of State v. Ross (1967), 12 Ohio St.2d 37, 231 N.E.2d 299, which was before this court upon a demurrer to an indictment, 'Where a criminal statute does not clearly make a Page 173 cer......
-
City of Youngstown v. DeLoreto
...intent a necessary element, an indictment charging the offense solely in the language of the statute is insufficient. State v. Ross, 12 Ohio St.2d 37, 231 N.E.2d 299; State v. Potts, 16 Ohio St.2d 111, 243 N.E.2d We have had the issue of the omission of a material element of a crime in an a......
-
Stanley v. Georgia, No. 293
...793 (1964). The interpretation was designed to avoid the constitutional problem posed by the 'dissenters' in Mapp. See State v. Ross, 12 Ohio St.2d 37, 231 N.E.2d 299 (1967). Other cases dealing with nonpublic distribution of obscene material or with legitimate uses of obscene material have......
-
State v. Kasnett, No. 689
...(1964), 176 Ohio St. 482, 200 N.E.2d 590; State v. Healy (1951), 156 Ohio St. 229, 102 N.E.2d 233. See, however, State v. Ross (1967), 12 Ohio St.2d 37, 231 N.E.2d The Supreme Court of The state of Washington, in State v. Turner (1970), 78 Wash.2d 276, 474 P.2d 91, has stated with respect t......