State v. Roufa, No. 45431

• Court: Supreme Court of Louisiana
• Writing for the Court: Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Richard A. Dowling, Dist. Atty.; HAMLIN
• Citation: 129 So.2d 743,241 La. 474
• Decision Date: 24 April 1961
• Docket Number: No. 45431
• Parties: STATE of Louisiana v. Maurice L. ROUFA.

Page 743

129 So.2d 743 241 La. 474 STATE of Louisiana
v.
Maurice L. ROUFA. No. 45431. Supreme Court of Louisiana. April 24, 1961.
Rehearing Denied May 29, 1961.

[241 La. 476]

Page 744

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Richard A. Dowling, Dist. Atty., J. David McNeill, Executive Asst. Dist. Atty., Walter E. Doane, Asst. Dist. Atty., New Orleans, for appellant.

Morey L. Sear, William M. Lucas, Jr., New Orleans, for defendant-appellee.

James T. Flanagan, E. G. Gillin, Ivor A. Trapolin, New Orleans, for amicus curiae.

HAMLIN, Justice.

Maurice L. Roufa was charged by bill of information with a violation of LSA-R.S. 14:106(2), the Louisiana Obscenity Statute. ¹ The trial court sustained a Motion to Quash filed by the defendant; from that judgment, the State of Louisiana has appealed.

[241 La. 477] Paragraph Two of the Louisiana Obscenity Statute recites:

'Obscenity is the intentional:

'Production, sale, exhibition, possession with intention to display, exhibit, or sell, or the advertisement of, any obscene, lewd, lascivious, filthy, or sexually indecent print, picture, motion picture, written composition, model, instrument, contrivance or thing of whatsoever description;' ² (Act 388 of 1958.)

Defendant averred in his Motion to Quash that:

'1. The said bill of information fails to allege an offense for which defendant could be convicted.

'2. That the statute under which said defendant is charged is unconstitutional, in violation of the Constitution of the United States of America and [241 La. 478] the Constitution of the State of Louisiana and more particularly said statute is in violation of the First and Fourteenth Amendments to the Constitution

Page 745

of the United States of America and Article 1, Section 3 and Article 1, Section 2 of the Constitution of the State of Louisiana. ³

'3. That the statute under which defendant is charged has been declared unconstitutional by the Supreme Court of the State of Louisiana.

'4. That he said bill of information is so vague, general and obscure so as to prevent the defendant from answering to the charge.'

The trial court found that LSA-R.S. 14:106(2) lacked the necessary requirement of Scienter and was in violation of the First and Fourteenth Amendments to the United States Constitution and Article I, Section 3, and Article I, Section 2, of the [241 La. 479] Constitution of Louisiana. It stated that in view of its findings on the question of scienter, it was not necessary to rule on the other arguments advanced by defendant in his Motion to Quash. Authority for the trial court's ruling was the case of Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, rehearing denied 361 U.S. 950, 80 S.Ct. 399, 4 L.Ed.2d 383.

The State contends that the trial court was in error in its ruling and argues that it is readily apparent that the Louisiana Obscenity Statute requires that the proscribed acts shall be done intentionally or with general criminal intent. It states:

'The word 'intentional,' when used in connection with the doing of a wrongful act, signifies, not only that the party intended to do the particular act, but to do it knowing at the time it was wrongful. * * * Unquestionably, when our statute requires that the prohibited act shall be done 'Intentionally,' or with a general criminal intent, as is the requirement of our law, then the requirement that scienter element in the statute as laid down in the 'Smith case,' is met.'

We think it appropriate to first discuss the Smith case, supra, which we find inapposite to the instant prosecution. The Municipal Code of the City of Los Angeles, California, Section 41.01.1, provided:

[241 La. 480] 'Indecent Writings, Ect.--Possession Prohibited:

'It shall be unlawful for any person to have in his possession any obscene or indecent writing, book, pamphlet, picture, photograph, drawing, figure, motion picture film, phonograph recording, wire recording or transcription of any kind in any of the following places:

'2. In any place of business where * * * school supplies, magazines, books, pamphlets, papers, pictures or postcards are sold or kept for sale;'

Smith, the proprietor of a bookstore, was convicted under the above ordinance of the possession in his bookstore of a certain book found upon judicial investigation to be obscene.

On Appeal, the United States Supreme Court found that the ordinance, by not requiring scienter and making the possession of obscene matter a criminal offense, violated the fundamental concept of freedom of speech. It stated (361 U.S. 147, 80 S.Ct. 219):

'We have said: 'The fundamental freedoms of speech and press have

Page 746

contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by [241 La. 481] Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests.' Roth v. United States, supra, 354 U.S. 476, at page 488, 77 S.Ct. 1304, at page 1311, 1 L.Ed.2d 1498. This ordinance opens that door too far. The existence of the State's power to prevent the distribution of obscene matter does not mean that there can be no constitutional barrier to any form of practical exercise of that power. Cf. Dean Milk Co. v. City of Madison, 340 U.S. 349, 71 S.Ct. 295, 95 L.Ed. 329. It is plain to us that the ordinance in question, though aimed at obscene matter, has such a tendency to inhibit constitutionally protected expression that it cannot stand under the Constitution.'

Black's Law Dictionary, Fourth Edition, defines 'Scienter' as follows:

'Lat. Knowingly. The term is used in pleading to signify an allegation (or that part of the declaration or indictment which contains it) setting out the defendant's previous knowledge of the cause which led to the injury complained of, or rather his previous knowledge of a state of facts which it was his duty to guard against, and his omission to do which has led [241 La. 482] to the injury complained of. The insertion of such an allegation is called 'laying the...