Summary
In State v. Ross, 12 Ohio St.2d 37, waiver was not involved but the court affirmed a judgment of the court of appeals affirming a judgment of the common pleas court sustaining a demurrer to an indictment which omitted an element of intent not clearly made so by statute but declared so by judicial interpretation.
Summary of this case from State v. CulpOpinion
No. 40743
Decided November 22, 1967.
Criminal law — Indictment — Charging offense in language of statute insufficient, when — Judicial interpretation making intent an element — Possession of obscene literature.
Where a criminal statute does not clearly make a certain specific intent an element of the offense, but judicial interpretation has made such intent a necessary element, an indictment charging the offense solely in the language of the statute is insufficient. (Sections 2941.05 and 2905.34, Revised Code.)
APPEAL from the Court of Appeals for Hamilton County.
On February 25, 1966, the defendant, Ross, appellee herein, was indicted for possessing obscene photographs in violation of Section 2905.34, Revised Code. The pertinent parts of this statute provide that "no person shall knowingly * * * have in his possession or under his control an obscene, lewd, or lascivious * * * photograph * * *."
The indictment reads as follows:
"The Grand Jurors of the county of Hamilton, in the name and by authority of the state of Ohio, upon their oaths present that William Gaylord Ross on or about the eleventh day of January in the year nineteen hundred and sixty six at the county of Hamilton and state of Ohio, aforesaid, did unlawfully and knowingly have in his possession or under his control obscene, lewd and lascivious photographs, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Ohio."
The defendant demurred to this indictment on the ground that it failed to state a crime in that it did "not allege that the defendant was possessed of obscene photographs with a malicious intent to disseminate the same." The Court of Common Pleas sustained the demurrer on this ground and the Court of Appeals affirmed that order.
The appellant state is now before this court pursuant to the allowance of a motion for leave to appeal and it seeks reversal of the judgment of the Court of Appeals, vacation of the order sustaining the demurrer, and remand for further proceedings on the indictment.
Mr. Melvin G. Rueger, prosecuting attorney, and Mr. Fred J. Cartolano, for appellant.
Mr. Allen Brown, for appellee.
The problem underlying this case is that the language of the statute used in the indictment has been judicially limited, and this limitation is not apparent from the language itself. The crime is not to knowingly possess or control obscene material, but rather it is to do so with the guilty intention of using, exhibiting, or selling it wrongfully. State v. Jacobellis, 173 Ohio St. 22, reversed on other grounds, Jacobellis v. Ohio, 378 U.S. 184; State v. Saylor, 6 Ohio St.2d 139. This mens rea requirement was inferred by reading the language in context with the rest of the statute, and the motivation behind the inference was undoubtedly the preservation of language of otherwise questionable constitutionality. State v. Mapp, 170 Ohio St. 427, 433.
The result of this judicial limitation is that the crime has an element of specific intent which is not to be found within the literal words of the statute. The question of great general interest in this case is whether an indictment is sufficient if it uses only the words of the statute where the statute does not make clear all the elements of the crime. We hold in this case that such an indictment is not sufficient.
The appellant contends that an indictment need only follow the words of the statute to be sufficient, and it cites Section 2941.05, Revised Code. This section provides that an indictment "may be in words of the section of the Revised Code describing the offense or declaring the matter charged to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is charged."
This provision is not dispositive of the case. That the indictment "may be in the words" of the statute does not mean that it is necessarily sufficient if it is in those words alone. Even if the statute specifically provided that statutory language would always be sufficient, the courts might still require more to put the defendant on notice of the offense charged. Code of Georgia, Section 27-701, Barton v. State, 79 Ga. App. 380, 53 S.E.2d 707; Stone v. State, 76 Ga. App. 96, 45 S.E.2d 89.
The part of Section 2941.05, Revised Code, permitting an indictment to use the language of a statute is nothing more than the codification of a general rule found in many jurisdictions, 27 American Jurisprudence 660, Indictments, Section 100. This rule, and its most relevant exception, are stated in 4 Wharton's Criminal Law and Procedure 626, as follows:
"The general rule that an indictment or information for a statutory offense is sufficient if the offense is charged in the words of the statute, either literally or substantially, or in equivalent words, does not apply when the statutory words do not in themselves fully, directly, and expressly, without uncertainty or ambiguity, set forth all the elements and ingredients necessary to constitute the offense intended to be punished. * * *"
This exception is not surprising, as it is the logical result of cases requiring every element of a crime to be alleged for an indictment to be sufficient. Harris v. State, 125 Ohio St. 257, paragraph four of the syllabus.
There can be little doubt that the words, "knowingly * * * have in his possession or under his control," do not sufficiently inform the defendant of the element of guilty purpose essential to this crime. The appellant argues that they do inform the defendant, but he has used the result in Jacobellis while overlooking the way in which it was reached. The result was to read mens rea as well as scienter into "knowingly," but it was reached only by reading "knowingly" in the context of the entire statute. The word, "knowingly," did not of itself give rise to this interpretation.
The appellant has cited State v. Lisbon Sales Book Co., 176 Ohio St. 482, but that case is distinguishable because there all the elements of the crime were within the language of the statute. We have found no Ohio case directly in point, but there are analogous cases from other jurisdictions which have used reasoning similar to our own. See, in particular, State v. Oman, 265 Minn. 277, 121 N.W.2d 616.
In addition to the reasons above there is also indirect legislative authority for affirming the judgments below.
Section 2941.57, Revised Code, provides that:
"The accused may demur:
"* * *
"(B) When the intent is not alleged and proof thereof is necessary to make out the offense charged * * *." Although this ground of demurrer was not used by the defendant, it does indicate legislative recognition of the necessity of alleging intent when it is an essential element of the crime.
The judgment of the Court of Appeals affirming the judgment of the Common Pleas Court sustaining the demurrer is hereby affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL and HERBERT, JJ., concur.
SCHNEIDER, J., concurs in the syllabus and judgment.