State v. Saylor

• Decision Date: 11 May 1966
• Docket Number: No. 39828,39828
• Citation: State v. Saylor, 216 N.E.2d 622, 6 Ohio St.2d 139 (Ohio 1966)
• Parties: , 35 O.O.2d 215 The STATE of Ohio, Appellee, v. SAYLOR, Appellant.
• Court: Ohio Supreme Court

Page 139

6 Ohio St.2d 139

216 N.E.2d 622, 35 O.O.2d 215

The STATE of Ohio, Appellee, v. SAYLOR, Appellant.

No. 39828.

Supreme Court of Ohio.

May 11, 1966.

Syllabus by the Court

Proof of the mere possession of obscene material is not sufficient to sustain a conviction under Section 2905.34 of the Revised Code, which requires proof of a guilty purpose (mens rea) to disseminate such material. (State v. Jacobellis, 173 Ohio St. 22, 179 N.E.2d 777, followed.)

On January 14, 1964, Carl M. Saylor, the defendant, was engaging in a business known as 'The Paper Back Mart' at 435 McKinley Avenue in Canton, Ohio. The indictment charges that on such date the defendant 'did knowingly have in his possession or under his control certain obscene, lewd or lascivious books, magazines, pamphlets and pictures contrary to the statute (Section 2905.34, Revised Code) * * *.'

The right to a jury trial was waived, and the case was tried to the Common Pleas Court, Stark County, on an agreed statement of facts. It was stipulated that 'on January 14, 1964, the defendant did knowingly have in his possession or under his control at said place of business but not an public display, the following books, magazines, pamphlets and pictures: * * * (There follows a list of 52 items, primarily nudist and so-called girlie magazines.)' (Emphasis added.)

The trial court found the defendant 'guilty of the charge of possession of obscene literature (R.C. 2905.34) as contained in the indictment.' The Court of Appeals affirmed the conviction, one judge dissenting. This court allowed defendant's motion for leave to appeal.

Norman J. Putnam, Pros. Atty., and James R. Unger, Canton, for appellee.

Jerry P. Hontas, Canton, for appellant.

HERBERT, Judge.

The defendant was convicted of violating Section 2905.34 of the Revised Code, which commands that 'no person shall knowingly sell, lend, give away, exhibit, or offer to sell, give away, or exhibit, or publish or offer to publish or have in his possession or under his control an obscene, lewd, or lascivious book, magazine, pamphlet * * * picture * * *.' (Emphasis added.)

The requirement of knowingly having in possession obscene material was explained in State v. Jacobellis (1962), 173 Ohio St. 22, 179 N.E.2d 777, reversed on other grounds, Jacobellis v. State of Ohio (1964), 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793. The second paragraph of the syllabus reads as follows:

'The words, knowingly possess, as used in Section 2905.34, Revised Code, include 'scienter' (guilty knowledge) and 'mens rea' (guilty purpose), both of which must be established by proper evidence to sustain a conviction for violation of such section.'

In further explication of the element of mens rea, or guilty purpose, the majority opinion stated, at 173 Ohio St. 27, 28, 179 N.E.2d 781:

A person 'could only be said to violate the law when and if he forms the purpose to use, exhibit or sell it wrongfully, in other words, forms the mens rea and acts in furtherance thereof.

'When this phrase is read in context with and in relation to the rest of the section, it is readily apparent that such phrase does not relate to the mere possession for private and personal gratification but rather to possession and control for the purpose of circulation of exhibition * * *.' (Emphasis added.)

In the case at bar, it was stipulated that the materials in question were 'not on public display' in the book store. The agreed statement of facts makes no reference or mention of guilty purpose to sell, circulate or exhibit the materials,...