Tracey v. State, 30924

• Decision Date: 31 May 1961
• Docket Number: No. 30924,30924
• Citation: 130 So.2d 605
• Parties: Frank T. TRACEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 605

130 So.2d 605

Frank T. TRACEY, Appellant, v. STATE of Florida, Appellee.

No. 30924.

Supreme Court of Florida.

May 31, 1961.

Damon G. Yerkes, Jacksonville, for appellant.

Richard W. Ervin, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.

O'CONNELL, Justice.

This is the second appearance of the appellant before this Court in a criminal case involving obscene literature. See State v. Tracey, Fla.1958, 102 So.2d 386.

In the case presently before us the appellant, hereinafter referred to as defendant, appeals from a judgment and sentence of guilty imposed after trial, without a jury, on two informations charging violations of Sec. 847.01, F.S.1959, F.S.A.

The first information, in three counts, charged that defendant 'did unlawfully possess obscene, lawd, lascivious, filthy and indecent' books, motion picture films and photographs, which were devoted principally to the presentation and exploitation of illicit sex, passion, depravity or immorality which offense is described in Sec. 847.01(1)(b), F.S.1959, F.S.A.

The second information, in one count, charged the defendant with having sold such an obscene book, as prohibited by the first paragraph of Sec. 847.01(1), F.S.1959, F.S.A.

In the proceedings in the trial court the defendant attacked the constitutionality of the statutes involved and the trial court ruled the statutes to be valid, which gives this Court jurisdiction of this appeal.

In his brief the defendant raises two principal questions.

First, he contends that the statutes involved are unconstitutional.

Second, he argues in effect that he was not guilty of possessing or selling the obscene matter as charged in that he possessed and sold same in an effort to cooperate with the F.B.I.

At oral argument before us the defendant's counsel argued that the defendant had been entrapped, and also argued that the informations under which defendant was charged and convicted were fatally defective in that no allegation of scienter was made therein.

The foremost question centers on the constitutionality of the statutes involved.

Defendant contends that Sec. 847.01, insofar as it is involved here, impairs freedom of speech and is in violation of both the state and federal constitutions, and further that the statute fails to provide sufficient standards of guilt.

In the case of Cohen v. State, Fla.1961, 125 So.2d 560, the 1957 version of Sec. 847.01(1), which was involved therein, was attacked as being unconstitutional on the same grounds as asserted by defendant in this case.

The act was amended in 1959 but insofar as pertinent here no change was made in the 1957 act by the 1959 amendment. So it is that the 1959 version of Sec. 847.01(1) which is involved herein has, insofar as is pertinent to this case, already been determined to be constitutional by this Court in the Cohen case. This is determinative of the defendant's contention that the first paragraph of Sec. 847.01(1) is unconstitutional.

However, in this case the defendant was also charged with unlawfully possessing such obscene matter under Sec. 847.01(1)(b), F.S.1959, F.S.A., which subsection did not exist in 1957, was not involved in the Cohen case, and therefore was not directly ruled upon therein.

Sec. 847.01(1)(b), which was added in 1959, makes it unlawful to possess any of the matter subject to the descriptive words contained therein, while the first paragraph of Sec. 847.01(1) condemns the sale, distribution, publication, etc., of such matter.

Sec. 847.01(1)(b) in condemning the possession of obscene matter utilizes the same descriptive words as does the statute condemning the sale, distribution, etc., of such matter which we held constitutional in the Cohen case. To the extent that this subsection of the statute is attacked because of its failure to lay down sufficiently ascertainable standards of guilt our opinion in the Cohen case determines this contention against the defendant.

The only possibly remaining question on the validity of Sec. 847.01(1)(b) is whether possession of obscene matter is constitutionally protected under the freedom of speech provisions of our constitutions. The United States Supreme Court has emphatically stated that it is not. Roth v. United States, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Smith v. People of State of California, 1959, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. With this we fully agree.

In support of his contention that the subject provisions of Ch. 847, F.S.1959, F.S.A., are unconstitutional the defendant relies on the cases of Butler v. State of Michigan, 1957, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412; Winters v. People of State of New York, 1948, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840; and Herndon v. Lowry, 1937, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066. None of these cases are helpful to defendant.

Butler v. State of Michigan, supra, which was most helpful to appellant in that case involving him reported at 102 So.2d 386, involved a statute which proscribed literature, or other matter, as measured solely by its propensity toward corruption of the morals of youth. The sections of the statute involved here are in no wise geared to the effect of the obscene materials on the morals of youth. The decision in the Butler case is therefore not applicable.

Winters v. People of State of New York, supra, and Herndon v. Lowry, supra, both correctly stand for the proposition that where a statute is so vague as to make criminal an innocent act, a conviction under it cannot be sustained.

In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1312, 1 L.Ed.2d 1498, supra, the Supreme Court of the United States held that the words 'obscene, lewd, lascivious, or filthy', 'indecent character', and 'obscene or indecent' provided reasonably ascertainable standards of guilt. It noted that some courts had held the words not to be precise and then said that 'this Court * * * has consistently held that lack of precision is not of itself offensive to the requirements of due process.' 354 U.S. at page 491, 77 S.Ct. at page 1312.

In addition to the words 'immoral', 'degrading', 'sadistic' and 'masochistic', the statutes now before us describe the prohibited matter with the words 'obscene', 'lewd', 'lascivious', 'filthy', and 'indecent', which were approved as being sufficient in the Roth case, supra. Thus it seems clear that the statutes now involved are not subject to the infirmities discussed in Winters v. People of State of New York, supra, and Herndon v. Lowry, supra.

Further it should be noted that the information under which defendant was charged in this case used only the identical descriptive words which were approved in the Roth case.

We conclude then that as against the above mentioned attack the subject statutes must be held valid.

Defendant's second question deals with the sufficiency of the evidence to support the judgment of conviction.

Defendant does not contend here that he did not possess or that he did not sell obscene matter. Nor does he contend that the articles were not obscene. The record before us clearly indicates that he admitted both possession and sale with knowledge of the obscene character of the matter.

As we view his contention under this point defendant seeks to excuse his possession and sale of the obscene matter under the exception to the prohibition of Sec. 847.01(1).

This exception is found in the introductory sentence of Sec. 847.01(1) and in effect provides that it shall not be unlawful for the condemned matter to be '* * * held by authorized persons for prosecution purposes * * *.'

Defendant in his brief contends that he had possession of the obscene articles and made the sales thereof in an effort, made at the request of two F.B.I. agents, to secure information as to interstate traffic in such articles.

The record, as shown by the following summary of parts thereof, does not support defendant's contention.

The record shows that, for some time prior to the offenses involved herein, the defendant and two agents of the F.B.I. had been if rather frequent contact. The F.B.I., for some unexplained but understandable reason, was of the opinion defendant might be able to assist it in the obtaining of information concerning interstate traffic in obscene matter. The agents requested defendant to pass any such information along to them and contacted him on occasion to give him such opportunity. No information was ever given by defendant to the agents.

On September 17, 1959, one Harding, who unknown to defendant was assisting the local law enforcement officials, approached defendant at a novelty shop operated by him and asked him if he had any 'dirty joke books.' Defendant said he had some and walked to the rear of his shop, came back with several books, selected one and sold it to Harding, saying he thought he might enjoy it. The book, introduced into evidence, was found by the court to be obscene.

Defendant claimed that prior to that date he had been out of town, and when he returned to his novelty shop on September 16, 1959 he found the subject books, along with others, in a package which had arrived through the mail. He testified he had not ordered such books and they were sent to him on consignment. He claimed he made the sale to Harding, hoping to obtain some of the requested information for the F.B.I., and said Harding told him he would return later for more purchases.

Defendant did not contact the F.B.I. agents, saying he had no opportunity because he went out of town again. He did not offer evidence as to when he left town but said he returned on September 25, 1959.

Defendant then alleged that on that day, September 25th, a man came into his store offering to sell him certain films and literature found in his shop, bringing some with him. He said that the man then left his shop in order to get more of the articles from his automobile and while he was gone Harding came into defendant's store for a second time and again...