Stroud v. State

• Decision Date: 15 October 1971
• Docket Number: No. 570S107,570S107
• Parties: Allan STROUD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 842

273 N.E.2d 842

257 Ind. 204

Allan STROUD, Appellant, v. STATE of Indiana, Appellee.

No. 570S107.

Supreme Court of Indiana.

Oct. 15, 1971.

Franklin Miroff, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., John T. Carmody, Fredrick R. Spencer, Deputy Attys. Gen., for appellee.

ARTERBURN, Chief Justice.

On August 21, 1969, appellant was charged by indictment with the offense of Sale of Obscene Literature. Appellant moved to quash the indictment, alleging 'that the statute on which this action was based Acts 1961, ch. 40, sec. 1, p. 70 (Burns 10--2803) (IC 1971, 35--30--10--1) is unconstitutionally vague and provides for constitutional censorship and invasion of privacy.' The trial court overruled the motion, whereupon, the appellant entered a plea of not guilty, waiving jury trial. On January 21, 1970, the court found the appellant guilty and fined him one hundred dollars ($100.) and costs.

Appellant sets forth four propositions of alleged error, which in substance presents three issues for our consideration, they are as follows:

(1) Whether Burns' Ind.Stat.Ann. sec. 10--2803, infra, which, inter alia, provides that it is a criminal offense to sell obscene literature, is unconstitutional on its face.

(2) Whether Burns' Ind.Stat.Ann. sec. 10--2803, infra, is unconstitutional as applied to the facts of this case.

(3) Whether the evidence presented was sufficient to support the finding of appellant's guilt beyond a reasonable doubt.

We will first consider appellant's contention that Burns' Ind.Stat.Ann. sec. 10--2803, is unconstitutional on its face. Appellant bases this contention on the premise that the statute; (1) is violative of his First Amendment rights of freedom of speech and press, and (2) fails to convey an adequate description of the evil intended to be prohibited so that a person of ordinary comprehension subject to the law can know what conduct on his part will render him liable to its penalties, and further in this regard, that it is so broad that it permits arbitrary prosecution under its proscription, in violation of the due process clause of the Fourteenth Amendment to the United States Constitution. With these contentions we cannot agree. First, as to appellant's urging that Burns' Ind.Stat.Ann. sec. 10--2803, infra, is violative of his First Amendment rights of freedom of speech and press, there is no merit to the contention, as obscenity has never been afforded the protection of the First Amendment. In Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, the Supreme Court in unequivocal language stated, 'We hold that obscenity is not within the area of constitutionally protected speech or press.' (354 U.S. at 485, 77 S.Ct. at 1309). In Campbell v. State (1971), Ind., 271 N.E.2d 463, 465, regarding an individual's First Amendment rights, we made this observation.

'The right of free expression, guaranteed by the First Amendment to the Constitution of the United States, exists but as a unitary portion of a group of corollary rights, each of which can only be exercised to the extent that such does not encroach upon or erode the others. The States, within the limitations imposed by the due process and equal protection requirements of the Fourteenth Amendment to the Constitution of the United States, may regulate and restrain the exercise of the freedom of expression, thereby insuring to all the freedom from the abusive exercise of the rights of others, including the right of free expression.'

In summary, Burns' Ind.Stat.Ann., supra, does not violate appellant's First Amendment Rights, in light of the fact that these rights are not absolute and the State has a right to restrain and regulate the exercise of these rights, under its police power, to protect the public health, public morals, public order, public safety or public welfare. Hanley v. State Dept. of Conservation et al (1954), 234 Ind. 326, 123 N.E.2d 452.

We will now consider appellant's contention that Burns' Ind.Stat.Ann. sec. 10--2803, is unconstitutional because it fails to convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Burns' Ind.Stat.Ann. sec. 10--2803 provides:

'10--2803. Obscene literature and devices--Circulation, possession, manufacture.--Whoever knowingly sells or lends, or offers to sell or lend, or gives away, or offers to give away, or in any manner exhibits or has in his possession, with or without intent to sell, lend or give away, any obscene, lewd, indecent or lascivious book, pamphlet, paper, drawing, lithograph, engraving, picture, daguerreotype, photograph, stereoscopic picture, model, cast, instrument, or article of indecent or immoral use, or instrument or article for procuring abortion, or for self-pollution or medicine for procuring abortion, or advertise the same, or any of them, for sale, or writes or prints any letter, circular, handbill, card, book, pamphlet, advertisement or notice of any kind, or gives information orally, stating when, how, where, or by what means, or of whom any of the obscene, lewd, indecent or lascivious articles or things, hereinbefore mentioned can be purchased, borrowed, presented or otherwise obtained, or are manufactured; or whoever knowingly manufactures, or draws and exposes, or draws with intent to sell or have sold, or prints any such articles or things, shall be fined not less than twenty dollars ($20.00) nor more than one thousand dollars ($1,000), to which may be added imprisonment for not less than twenty (20) days nor more than one (1) year; but nothing in this act shall be construed to affect teaching in regularly chartered medical colleges, or the publication of standard medical books, or the practice of regular practitioners of medicine or druggists in their legitimate business.' (Acts 1961, ch. 40, § 1, p. 70.) (Emphasis added)

It is the emphasized portion of the Statute which the appellant urges fails to adequately convey a description of the evil intended to be prohibited. These words, obscene, lewd, indecent and lascivious, do adequately convey a description of the evil intended to be prohibited. Our opinion is supported by the United States Supreme Court's decision in Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, wherein, the Court made the following observation and statement regarding an allegation that the two statutes involved therein were unconstitutional because they failed to provide a 'reasonably ascertainable standard of guilt.' The Roth decision clearly answers the question presented here.

'It is argued that the statutes do not provide reasonably ascertainable standards of guilt and therefore violate the constitutional requirements of due process. Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840. The federal obscenity statute makes punishable the mailing of material that is 'obscene, lewd, lascivious, or filthy * * * or other publication of an indecent character.' The California statute makes punishable, inter alia, the keeping for sale or advertising material that is 'obscene or indecent.' The thrust of the argument is that these words are not sufficiently precise because they do not mean the same thing to all people, all the time, everywhere.' (354 U.S. 491, 77 S.Ct. 1312)

'Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. '* * * (T)he Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices * * *.' United States v. Petrillo, 332 U.S. 1, 7, 8, 67 S.Ct. 1538, 91 L.Ed. 1877, 1883. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark' * * * boundaries sufficiently distinct for judges and juries fairly to administer the law * * *. That there may be marginal cases in which it is difficult to determine the side of the line on ^* which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense * * *. " (Emphasis added; 354 U.S. 491, 77 S.Ct. 1312)

The following cases cite the above portion of the Roth decision as authority for the proposition. Reed Enterprises et al. v. Clark (D.C.1967), 278 F.Supp. 372 at 382; McGrew v. City of Jackson, Mississippi (D.C.1969), 307 F.Supp. 754 at 757; McAlpine v. Reese (D.C.1970), 309 F.Supp. 136 at 139; Hosey v. City of Jackson, Mississippi (D.C.1970), 309 F.Supp. 527 at 529; Karp v. Collins (D.C.1970), 310 F.Supp. 627 at 638; Miller v. United States (9 Cir. 1970), 431 F.2d 655 at 656.

We will next consider appellant's contention that Burns' Ind.Stat.Ann. sec. 10--2803, supra, is 'unconstitutional as applied' to the facts of the instant case. At this point, having already determined that the statute is constitutional, the question raised by appellant's contention that the staute is unconstitutional as applied, is now moot. In analysis, the only question which remains is whether the facts of the instant case are such as to fall within the ambit of a factual setting proscribed by the above statute, namely whether there was sufficient evidence of probative value from which the trier of the facts, in light of the standards laid down in Roth v. United States, supra, and other cases since decided involving the question of obscenity, could conclude that the appellant was guilty of the conduct proscribed by the statute. In every such case there is always the question of whether the appellant's conduct is within the statutory regulation or proscription. Further, a determination that an appellant's conduct is not within the regulation or proscription does not mean that the statute...