State v. Roufa
Decision Date | 24 April 1961 |
Docket Number | No. 45431,45431 |
Citation | 129 So.2d 743,241 La. 474 |
Parties | STATE of Louisiana v. Maurice L. ROUFA. |
Court | Louisiana Supreme Court |
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.
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.
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 the Constitution of the State of Louisiana and more particularly said statute is in violation of the First and Fourteenth Amendments to the Constitution 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.
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 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:
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:
'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:
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):
Black's Law Dictionary, Fourth Edition, defines 'Scienter' as follows:
Cassell's Latin Dictionary, 1958 printing, defines 'Scienter,' 'adv.' as 'skilfully, expertly; dicere, Cic.' It defines 'Scientia' as 'a knowing, knowledge of, acquaintance with.'
The statute under consideration herein recites that Obscenity (the prohibited act) must be intentional, and that Possession must be with intention to display and exhibit obscene, lewd, lascivious, filthy, or sexually indecent matter.
In Webster's New World Dictionary, College Edition, we find:
We also find many and numerous definitions of 'Intent' and 'Intention.' "Intent' is an operation of the mind.' State Farm Mut. Auto. Ins. Co. v. Miller, 194 Va. 589, 74 S.E.2d 145, 148; 'Intention is a mental application of one's thoughts toward some object to be attained in a certain manner.' Nelson v. Nelson, 139 N.J.Eq. 329, 51 A.2d 251, 252. See, 46 C.J.S., p. 1103; Vol. 22 Words and Phrases, Intention, p. 18; Vol. 38 Words and Phrases, Scienter, p. 330; Deane v. Johnston, Fla., 104 So.2d 3, 65 A.L.R.2d 957.
In State v. Fulco, 194 La. 545, 194 So. 14, 17, this Court stated that, (Emphasis ours.) See, also, State v. Howard, 162 La. 719, 111 So. 72, where 'wrongful intent' is also used in combination with 'Guilty Knowledge.'
The statement that the criminal intent or guilty knowledge of the defendant was necessarily a question of fact for the jury was made in State of Louisiana v. Birdsell, 232 La. 725, 95 So.2d 290. In the body of that opinion we emphatically stated that in State v. Johnson, 228 La. 317, 82 So.2d 24, we had announced the principle that no crime can exist without the combination of a criminal act and a criminal intent, or an evil motive, or with a guilty knowledge of its consequences. See, also, 18 La. Law Review, p. 122, 'Guilty Knowledge as a Element of Crime.' It follows that Louisiana jurisprudence has used the phrases 'Criminal Intent' and 'Guilty Knowledge' in combination with each other. See, also, United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619.
In Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 862, 95 L.Ed. 1137, we find the following pertinent statement:
See, Morissette v. United States of America, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288; Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244. 4
We conclude that the word 'Intentional' and the phrase 'With Intention' in the Louisiana Obscenity Statute mean that knowledge is implied where one has criminal intent. It leaps to the mind that knowledge...
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...... Page 466 . person applying contemporary community standards. . The Louisiana Legislature, apparently reacting to the Roth decision, amended R.S. 14:106(2) to read as above quoted, in 1960. In State v. Roufa, 241 La. 474, 129 So.2d 743 (1961) this Court held the particular section of the statute we consider to be constitutional, relying upon Roth v. United States. In Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), the court transformed Roth's statement that Obscenity is ......
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