Opinion
No. 36091
Decided March 23, 1960.
Criminal law — Knowingly possessing obscene literature — Section 2905.34, Revised Code — Evidence — Sufficient to convict — Obscene literature unlawfully seized during unlawful search — Appeal — Constitutionality of statute — Affirmance of conviction.
1. Assuming the constitutional validity of the part of Section 2905.34, Revised Code, which prohibits any person from knowingly having in his possession or under his control lewd or lascivious books and pictures, a defendant may be convicted thereunder where the evidence discloses that, in packing up the belongings of a former roomer in such defendant's home, such defendant found lewd and lascivious books and pictures and packed them with such former roomer's other belongings for the purpose of storing them for him until he came for them.
2. A conviction thereunder may be valid although that conviction is based primarily upon the introduction in evidence of lewd and lascivious books and pictures unlawfully seized during an unlawful search of defendant's home, where it does not appear that such evidence was taken from defendant's person by the use of brutal or offensive force against defendant. ( State v. Lindway, 131 Ohio St. 166, followed.)
3. Where a majority of less than six members of the Supreme Court are of the opinion that the portion of a statute upon which a conviction is based is unconstitutional and void but no other reversible error appears in the record, a judgment of the Court of Appeals sustaining such conviction must be affirmed. (Section 2 of Article IV of the Constitution applied.)
APPEAL from the Court of Appeals for Cuyahoga County.
Defendant was indicted for "unlawfully and knowingly" having "had in her possession and under her control, certain lewd and lascivious books, pictures and photographs."
This indictment was based upon Section 2905.34, Revised Code, which reads in part:
"No person shall knowingly * * * have in his possession or under his control an obscene, lewd, or lascivious book * * * print, [or] picture * * *
"Whoever violates this section shall be fined not less than $200 nor more than $2,000 or imprisoned not less than one nor more than seven years, or both."
The verdict of the jury found the defendant "guilty of possession of obscene literature as charged in the indictment." Defendant's motion for a new trial was overruled and the Common Pleas Court rendered judgment sentencing defendant to imprisonment in the Ohio Reformatory for Women for an indeterminate period.
Section 5143.05, Revised Code, reads in part:
"Courts imposing sentences to the reformatory shall make them general, and not fixed or limited in their duration. The term of imprisonment shall be terminated by the Pardon and Parole Commission * * * but * * * shall not exceed the maximum term, nor be less than the minimum term provided for such felony."
On appeal to the Court of Appeals, that judgment was affirmed.
The cause is now before this court on appeal from the judgment of the Court of Appeals.
Mr. John T. Corrigan, prosecuting attorney, and Mrs. Gertrude Bauer Mahon, for appellee.
Mr. A.L. Kearns, for appellant.
The books and pictures in evidence in the instant case clearly represent, and the undisputed evidence in the record indicates, that defendant knew at the time she is charged with having possessed them that they represented lewd and lascivious books and pictures. However, defendant contends that they were not "in [her] possession or under [her] control" within the meaning of the words of Section 2905.34, Revised Code.
Defendant offered evidence to prove that these books and pictures belonged to a man who had rented from her and occupied a room in her home; that, when she learned he was not going to return or use the room for the balance of the last month for which he had rented it, she decided to use the room for herself and to pack up his belongings and store them until he came for them; that, in doing so, she found these lewd and lascivious books and pictures and packed them in a box and one of her suitcases with his other belongings with the purpose of storing them until he came for his belongings; and that she never looked at these books and pictures again before they were seized by the police.
In our opinion, this evidence of defendant establishes that she had these books and pictures "in * * * [her] possession or under * * * [her] control" within the meaning of those words as used in Section 2905.34, Revised Code.
Her evidence clearly discloses that defendant not only took possession and control of the room which she had rented but also of the belongings of her former tenant, including the books and pictures which the undisputed evidence shows that she knew to be lewd and lascivious.
Hence, it follows that, if the portion of Section 2905.34, Revised Code, that was applied in the instant case, is not unconstitutional and void, then, even if we assume that there were errors in the trial court's charge as defendant argues, such errors could not have prejudiced defendant. It becomes necessary therefore to consider whether the constitutional questions raised require a reversal of the judgment under review.
Defendant contends that the due process clause of the 14th Amendment to the Constitution of the United States was violated by her conviction for possession and control of these books and pictures since that conviction was based primarily upon their unlawful seizure from her during an unlawful search of her home.
There is, in the record, considerable doubt as to whether there ever was any warrant for the search of defendant's home. No warrant was offered in evidence, there was no testimony as to who issued any warrant or as to what any warrant contained, and the absence from evidence of any such warrant is not explained or otherwise accounted for in the record. There is nothing in the record tending to prove or from which an inference may be drawn, and no one has even suggested that any warrant that we may assume that there may have been described anything other than policy paraphernalia as things to be searched for. Our statute (Section 2933.24, Revised Code) requires a search warrant to "particularly describe the things to be searched for." See also Section 2905.35, Revised Code. Our Constitution (Section 14 of Article I) specifically forbids the issuance of any such warrant except "upon probable cause, supported by oath or affirmation, particularly describing the place to be searched * * * and things to be seized." Admittedly therefore there was no warrant authorizing a search of defendant's home for any "lewd, or lascivious book * * * print, [or] picture."
However, this court has held that evidence obtained by an unlawful search and seizure is admissible in a criminal prosecution. State v. Lindway, 131 Ohio St. 166, 2 N.E.2d 490 (appeal dismissed and certiorari denied, 299 U.S. 506, 81 L.Ed., 375, 57 S. Ct., 36); and the Supreme Court of the United States has held that the Constitution of the United States does not usually prevent a state court from so holding. Wolf v. Colorado, 338 U.S. 25, 93 L. Ed., 1782, 69 S. Ct., 1359, Stefanelli v. Minard, 342 U.S. 117, 96 L. Ed., 138, 72 S. Ct., 118. Subsequently, in Rochin v. California, 342 U.S. 165, 96 L. Ed., 183, 72 S. Ct., 205, 25 A.L.R. (2d), 1396, that court held that a conviction, obtained primarily by introducing in evidence narcotics seized not only during an illegal search but by means of a physical assault upon the defendant, violated the due process clause. Although there are statements in the majority opinion in that case which will support a reasonable argument that the conviction in the instant case should be set aside because the "methods" employed to obtain the books and pictures were such as to "offend `a sense of justice,'" later decisions have refused to follow that case in instances not involving the acquisition of incriminating evidence by the use of "`brutal' or `offensive'" physical force against the person of the defendant. Breithaupt v. Abram, Warden, 352 U.S. 432, 1 L. Ed., (2d), 448, 77 S. Ct., 408. See also Irvine v. California, 347 U.S. 128, 98 L. Ed., 561, 74 S. Ct., 381 (evidence obtained by use of microphone illegally placed in defendant's home). Annotations 93 L.Ed., 1797, 96 L. Ed., 145, 98 L. Ed., 581, 100 L. Ed., 239, 50 A.L.R. (2d), 531. There is no evidence that any of the incriminating evidence in the instant case was taken from defendant's person by the use of brutal or offensive physical force against defendant.
Hence, we conclude that, if the portion of Section 2905.34, Revised Code, applied in the instant case is valid, the due process clause of the 14th Amendment to the Constitution of the United States was not violated by defendant's conviction, although that conviction was based primarily upon the introduction in evidence of books and pictures unlawfully seized during an unlawful search of defendant's home.
The constitutionality of the regulation of obscene literature is considered in a recent annotation in 1 L.Ed. (2d), 2211. That annotation does not indicate that there is any case decided by a court of last resort, and we can find none, considering the validity of a legislative prohibition against a mere knowing possession of lewd books and pictures. In most instances of legislation prohibiting possession of such articles, possession is prohibited, as it was under Section 2905.34, Revised Code (formerly Section 13035, General Code), prior to its amendment in 1939, where such possession is for the purpose of sale, lending, giving away, exhibiting or publishing. Under our statute as now worded, mere possession is forbidden even where the possessor does not have a purpose of again looking at the books or pictures; and, in the instant case, the jury could have found the defendant guilty and she could have been (as she was) sentenced as a felon, even though it believed her evidence that she had innocently acquired possession of these articles, had no intention of ever looking at them again and was merely keeping them pending instructions for their disposition from their owner. Cf. Lambert v. California, 355 U.S. 225, 2 L. Ed. (2d), 228, 78 S.Ct., 240, Weems v. United States, 217 U.S. 349, 54 L. Ed., 793, 30 S. Ct., 544.
If, as defendant's evidence discloses, defendant took possession and control of these books and pictures when she took possession of the room that had been occupied by her tenant and endeavored to pack up his things for him and, while doing that, necessarily learned of their lewd and lascivious character, then at that instant she had "in" her "possession" and "under" her "control" a "lewd or lascivious book * * * print [or] picture" as prohibited by this statute.
If such a legislative prohibition of possession of books and papers is valid, it may discourage law abiding people from even looking at books and pictures and thus interfere with the freedom of speech and press guaranteed by Articles I and XIV of the Amendments to the Constitution of the United States.
Smith v. California (1959), ___ U.S. ___, 4 L. Ed. (2d), 205, 80 S. Ct., 215, held invalid a legislative provision that made it "unlawful for any person to have in his possession any obscene or indecent writing, [or] book * * * in any place of business where * * * books * * * are sold or kept for sale."
In the court's opinion by Mr. Justice Brennan it is said:
"We have held that obscene speech and writings are not protected by the constitutional guarantees of freedom of speech and the press. Roth v. United States, 354 U.S. 476, 1 L. Ed. (2d), 1498, 77 S. Ct., 1304. * * * our holding in Roth does not recognize any state power to restrict the dissemination of books which are not obscene; and we think this ordinance's strict liability feature would tend seriously to have that effect, by penalizing booksellers, even though they had not the slightest notice of the character of the books they sold. * * * if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the state will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. * * * the bookseller's burden would become the public's burden, for by restricting him the public's access to reading matter would be restricted. If the contents of bookshops and periodical stands were restricted to material of which their proprietors had made an inspection, they might be depleted indeed. The bookseller's limitation in the amount of reading material with which he could familiarize himself, and his timidity in the face of his absolute criminal liability, thus would tend to restrict the public's access to forms of the printed word which the state could not constitutionally suppress directly. The bookseller's self-censorship, compelled by the state, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene and not obscene, would be impeded."
It may be argued that the legislation involved in the instant case, unlike that involved in the Smith case, requires scienter because it only makes it unlawful to " knowingly * * * have * * * possession." However, this legislation is analogous in its effect to that in the Smith case. If anyone looks at a book and finds it lewd, he is forthwith, under this legislation, guilty of a serious crime, which may involve a sentence to the penitentiary similar to the one given to this defendant. As a result, some who might otherwise read books that are not obscene may well be discouraged from doing so and their free circulation and use will be impeded. Cf. Benjamin v. City of Columbus, 167 Ohio St. 103, 146 N.E.2d 854, where no question of freedom of press involved.
In the opinion of Judges Taft, Bell, Herbert and Peck, the portion of Section 2905.34, Revised Code, upon which defendant's conviction was based, is constitutionally invalid, and, for that reason, the judgment of the Court of Appeals should be reversed. However, Section 2 of Article IV of the Constitution of Ohio reads in part:
"No law shall be held unconstitutional and void by the Supreme Court without the concurrence of at least all but one of the judges, except in the affirmance of the judgment of the Court of Appeals declaring a law unconstitutional and void."
Since more than one of the judges of this court are of the opinion that no portion of the statute upon which defendant's conviction was based is unconstitutional and void, the judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
ZIMMERMAN and PECK, JJ., concur.
MATTHIAS, J., concurs in paragraphs two and three of the syllabus and in the judgment.
WEYGANDT, C.J., concurs in the judgment.
BELL and HERBERT, JJ., concur in paragraphs one and three of the syllabus but dissent from paragraph two thereof and from the judgment.
Although I concur in paragraphs one and three of the syllabus, I must dissent from paragraph two which follows State v. Lindway, 131 Ohio St. 166, 2 N.E.2d 490, and the judgment. The facts are sufficiently stated in the majority opinion.
Section 14, Article I of the Ohio Constitution, provides:
"The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized."
The judgment in the Lindway case is not in conflict with this constitutional provision. Had I been a member of this court at that time I would have joined in the judgment as all the members of the court then did because the evidence there clearly established that the defendant was operating a bomb manufacturing shop in the basement of that house.
As stated by Jones, J., in the concurring opinion in that case:
"This defendant was suspected of manufacturing bombs and of being engaged in the nighttime bombing of the homes of employees of a manufacturing company. If the search produced evidence of his projected crime, the evidence should have been admitted; for neither Constitution nor state law was intended to provide security for such dangerous enemies to our public peace."
The foregoing sentence contains ample legal foundation and justification for the judgment affirming the conviction there. As to that portion of the syllabus, however, relating to evidence obtained by an unlawful search — in which only a bare majority concurred — it seems to me to be far too comprehensive and susceptible to abuse by police and prosecution authorities. As a rule, abuses by such officials rarely occur but when they do the constitutional rights of the private citizen should be fully protected. The broad scope of the rule relating to evidence obtained by an unlawful search, as stated in the Lindway syllabus, leads me to the inescapable conclusion that in too many instances it virtually sterilizes the constitutional guarantees provided by Section 14, Article I.
On the basis of the constitutionality of Section 2905.34, Revised Code, which is fully discussed and disposed of in the majority opinion, this case seems to me to afford a perfect opportunity for the court to modify and limit the Lindway rule in the direction indicated by Jones, J., so as to bring it into accord with a more reasonable interpretation of the above-quoted provision of the Constitution and the requirements of the statutes enacted to implement it.
Section 13035, General Code (now Section 2905.34, Revised Code), provided, from 1910 to 1939, as follows:
"Whoever sells, lends, gives away, exhibits, or offers to sell, lend, give away or exhibit, or publishes or offers to publish or has in his possession for such purpose, an obscene, lewd or lascivious book * * *." (Emphasis added.)
In fact, the emphasized words read "for any such purpose" from 1894 until 1910.
In 118 Ohio Laws, 420 (1939), the emphasized words were stricken and the words, "or has under his control," were inserted in their place.
In 120 Ohio Laws, 230 (1943), the word, "knowingly," was inserted after the opening word, "whoever." In the same act, Section 13035-1, General Code (now Section 2905.35, Revised Code), was passed, providing for the issuance of search warrants for suspected violation of the preceding section and also providing for the disposition of articles seized under such warrants. The last sentence of this search-warrant statute now reads:
"The magistrate shall immediately transmit every article seized by virtue of the warrant, to the prosecuting attorney, who shall, upon conviction of the person from whose possession the same was taken, cause it to be destroyed, and the fact of such destruction to be entered upon the records of the court in which the conviction is had."
Ironically enough, there being no evidence of the issuance of a search warrant for obscene books, the provisions of this last sentence are not applicable to the disposition of the evidence in the instant case.
In addition to the specific provisions of Section 2905.35, Revised Code, Section 2933.21, Revised Code, provides:
"A judge of a court or a magistrate may, within his jurisdiction, issue warrants to search a house or place:
"* * *
"(D) For books, pamphlets, ballads, or printed papers containing obscene language, prints, pictures * * * and for obscene, lewd, indecent, or lascivious drawings, lithographs, engravings, pictures * * *."
This provision has been in substantially the same form since 1876.
In the light of the Lindway rule and the decision in this case, one may well ask why the Legislature in 1943 enacted Section 13035-1, General Code (now Section 2905.35, Revised Code), particularly in view of the fact that Section 2933.21 (D), Revised Code, has for many years provided for search warrants in such cases.
Under the principle stated by Jones, J., in his concurring opinion in Lindway, a conviction could well be sustained in this case if books had been discovered in the home of defendant in quantities indicating a purpose to sell, lend, give away, exhibit or offer to do so (see "for such purpose," supra), but on the facts here it seems to the writer that the constitutional right of this defendant "to be secure * * * against unreasonable searches and seizures" was violated.
It is a basic principle that laws restraining the fundamental liberties of the individual must have as their foundation a broad basic public need which overshadows the rights of the individual. While we agree that the dissemination of obscene literature such as that produced in evidence in the present case is and should be against public morals and policy if for no other reason than that the immature mind which might be exposed to it could be greatly harmed, I cannot agree that mere private possession of such literature by an adult should constitute a crime. The right of the individual to read, to believe or disbelieve, and to think without governmental supervision is one of our basic liberties, but to dictate to the mature adult what books he may have in his own private library seems to the writer to be a clear infringement of his constitutional rights as an individual. Does the state have the power to prohibit the possession of chemistry books because from such books one might learn how to make a bomb or poisonous gas? Is the possession of medical books by a layman to be banned because of the possibility that he might learn about abortion and perhaps put such knowledge to use?
The foregoing paragraph is perhaps more applicable to a discussion of the constitutionality of Section 2509.34, Revised Code, than to the issue on which I dissent, but, since under another provision of the Constitution a bare majority of this court is powerless to invalidate the portion of that section under which the defendant was convicted, we certainly should scan carefully the method by which the evidence was acquired for such conviction. I would hold no brief for the defendant here if the evidence had disclosed a commercial purpose in the possession of these books. Had there been found printing presses with evidence of their criminal use or a sufficient volume of books to indicate the purpose of distribution, commercial or otherwise, we might well hold that the privacy and constitutional immunity of defendant's home from unlawful search and seizure had been lost by her own conduct (as in the Lindway case where a bomb factory was discovered), but on the undisputed facts, as disclosed in this record, I cannot so conclude. See, also, paragraph two of the syllabus in Ciano v. State, 105 Ohio St. 229, 137 N.E. 11.
As disclosed in 50 A.L.R. (2d), 531, the states are now about evenly divided between the extremes of the so-called federal rule on search and seizure and the rule as stated in Lindway, indicating a trend away from the Lindway rule since the time of its decision.
A violator of Section 2905.34, Revised Code, may, upon conviction, be either fined, jailed or sent to the penitentiary.
As Jones, J., stated in his concurrence in the Lindway case: "It is not for the class of criminal element alluded to, but for the class embodying millions of citizens who are innocent of any offense or whose offenses are minor, that I urge protection under the search and seizure clause of the state Constitution. The decision of this court in the instant case is too broad, since it is made to apply to everyone suspected of committing any offense whatever. There is one advantage the occupant of a bona fide dwelling now has and always has had — he could discover whether a search warrant had in fact been issued and for, his own protection, could demand its production."
Here, the defendant did just that and the evidence is uncontradicted that she was not given an opportunity to read it, if any was issued. In fact, it was not even contended by the prosecution that a warrant was ever issued authorizing a search of her home for obscene literature. In my view, the Lindway rule which is being followed in this case should be modified and clarified so that there will no longer be a judicial stamp of approval on the use of unlawful means to justify an end result. Here an admittedly private home was unlawfully searched, and I cannot concur in a judgment upholding conviction based solely on evidence so obtained.
BELL, J., concurs in the foregoing dissenting opinion.