Williams v. State , 130 Miss. 827 ( 1922 )

Sykes, J.,

delivered the opinion of the court.

'From a judgment of the circuit court finding the defendant guilty, and imposing a nominal fine against him, this appeal is prosecuted.

Omitting the formal parts of the affidavit upon which this prosecution rests, it reads as follows:

“Did then and there sell, lend, give away, or show, or had in his possession with intent to sell, lend, give away, show, or advertise, or otherwise offered for loan, gift, sale, or distribution, a certain obscene or indecent book, writing, paper, picture, drawing, or photograph or a certain article of indecent or immoral use, to-wit, the November issue of the Wampus Cat, against the peace and dignity of the state of Mississippi.”

This affidavit practically follows the language of tl^e first part of section 1292 of the Code of 1906 (section 1025, Hemingway’s Code). A plea of nolo contendere was entered in the justice of the peace court whereupon the justice imposed a fine upon the appellant, and he appealed to the circuit court.

In the circuit court the defendant interposed a demurrer to this affidavit. Briefly stated, the demurrer challenges the constitutionality of this section of the Code as being violative of the Fourteenth Amendment to the Constitution of the United States, and as being also in conflict with sections 13, 14, 16, 26, and 32 of the Constitution of the state of Mississippi. The learned circuit judge overruled the demurrer, the defendant interposed a plea of nolo contendere, whereupon a nominal fine was imposed against him.

While some of the early law winters doubted whether or not obscene libels were offenses at common law, 2 Bishop’s New Criminal Law, section 943, thus states the rule:

“The publication of any writing tending to corrupt the public morals is indictable. Hawkins, indeed, doubts whether such a writing, ‘full of obscene ribaldry, without any kind of reflection upon any one,’ is so; but whatever question there may have been at the time he wrote, ‘it is now,’ in the language of Starkie, ‘fully established that any immodest and immoral publication, tending to corrupt the mind and to destroy the love of decency, morality, and good order is punishable in the temporal courts' of England, and in the common-law criminal tribunals of our country.”

This statute is an exercise of the police power of the state; which power, broadly speaking, is that to promote order, safety, health, morals, and the general welfare of society. 12 C. J., 904. The right of freedom of speech guaranteed by the two Constitutions is thus well stated in 8 R. C. L., p. 313:

“The constitutional liberty of speech and of the press simply guarantees the right freely to utter and publish whatever the citizen may desire and to be protected in so doing, provided always that such publications are not blasphemous, obscene, and scandalous in their character, so that they1 become an offense against the public, and by their malice and falsehood injuriously affect the character, reputation, or pecuniary interests of individuals.”

In 12 C. J., p. 928, it is stated that the Fourteenth Amendment to the Federal Constitution “does not deprive the states of their police power, however; and, subject to the limitations expressed therein, the states may continue to exercise their police powers as fully as before the adoption of the amendment.” Again, on page 929 of the same work:

“In order that a statute or ordinance may be sustained as an exercise of the police power, the courts must be able to see that the enactment has for its object the prevention of some offense or manifest evil or the preservation of the public health, safety, morals, or general welfare, that there is some clear, real, and substantial connection between the assumed purpose of the enactment and the actual provisions thereof, and that the latter do in some plain, appreciable, and appropriate manner tend toward the accomplishment of the object for which the power is exercised.' The mere restriction of liberty or of property rights cannot of itself be denominated ‘public welfare,’ and treated as a legitimate object of the police power.”

In speaking of the liberty of the press Cooley on Cohstitutional Limitations (7th Ed.) bottom of page 604, says: “The constitutional liberty of speech and of the press, as we understand it, implies .a right 'to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity, or scandalous character may be a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation, or pecuniary interests of individuals.”

In the case of State v. Van Wye, 136 Mo. 227, 37 S. W. 938, 58 Am. St. Rep. 627, the rule as laid down by Judge Cooley is reiterated practically in the same language, and that court adds: That this “constitutional protection shields no one from responsibility for abuse of this right. To hold that it did would be a cruel libel upon the Bill of Rights itself. . . . Equally numerous and strong are the decisions that obscene publications are without the protection of this provision of our Constitution.” .

This opinion then quotes from U. S. v. Harmon (D. C.), 45 Fed. 414, wherein it is said: “Liberty in all its forms and assertions in this country is regulated by law. It is not an unbridled license. Where vituperation or licentiousness begins, the liberty of the press ends.”

In this opinion numerous authorities are cited upholding the constitutionality of statutes of this character. See, also, State v. McKee, 73 Conn. 18, 46 Atl. 409, 49 L. R. A. 542, 84 Am. St. Rep. 124. It will also be noted that federal statutes, making it a crime to send obscene matter through the mails, have been held constitutional. Ex parte Jackson, 96 U. S. 727, 24 L. Ed. 877; In re Rapier, 143 U. S. 110, 12 Sup. Ct. 374, 36 L. Ed. 93; Konda v. U. S., 166 Fed. 91, 92 C. C. A. 75, 22 L. R. A. (N. S.) 304.

Without specifically entering into an elaborate discussion of the sections of the state Constitution alleged to be violated, the same reasons apply to these sections as those relating to the Federal Constitution. It is, however, necessary to notice the contention of appellant to the effect that this statute charges no crime, because the word “obscene” has no specific definite meaning. We must, however, differ with counsel upon this question. Quoting from 3 Words and Phrases, Second Series, p. 672:

“The word ‘obscene,’ when used, as in the statute, to describe the character of a book, pamphlet, or paper, means containing immodest and indecent matter, the reading whereof would have a tendency to deprave and corrupt the minds of those into whose hands the publication might fall, whose minds are open to such immoral influences”— citing U. S. v. Moore (D. C.), 129 Fed. 159, 161; U. S. v. Clarke (D. C.), 38 Fed. 732.

Again: “The word ‘obscene’ means offensive to senses; repulsive; disgusting; foul; filthy; offensive to modesty or decency; impure; unchaste; indecent; lewd” — citing Holcombe v. State, 5 Ga. App. 47, 62 S. E. 647.

See other definitions of like character therein contained.

We therefore conclude that this statute is not violative of either the state or federal Constitutions. The sufficiency of the affidavit was not questioned in the lower court in the demurrer (except as to its constitutionality) or by motion to quash. “ The court of its own motion has considered whether or not a conviction may be sustained upon this affidavit. We think, though there are several charges made in the disjunctive in this affidavit, it relates to but one .transaction; that, though perhaps defectively stated, the defendant was informed of the nature and cause of the accusation made against him, and that he cannot complain after judgment of the court.

If timely objection had been made it would perhaps have been the duty of the state to amend the affidavit by more fully describing the alleged obscene matter which appears to be the'whole or a part of a publication called the Wampus Cat, and to have either set out in full the obscene matter therein, or allege that it was too obscene to be spread upon the records of the court. State v. Zurhorst, 75 Ohio St. 232, 79 N. E. 238, 116 Am. St. Rep., 724, 9 Ann. Cas. 45, and notes. This affidavit was amendable under section 1511 of the Code of 1906 (section 1269, Hemingway’s Code). And is therefore cured by section 1413 of the Code 1906. Norton v. State, 72 Miss. 128, 16 So. 264, 18 So. 916, 48 Am. St. Rep. 538. The following language of the opinion of the court in Cannon v. State, 75 Miss. 364, 22 So. 827, is especially applicable:

“The indictment charges two distinct offenses, but the two counts evidently rest upon one transaction. While the counts are for independent offenses, the offenses do not differ in character or degree, the punishment for each being the same. While it is bad practice to charge different and independent offenses in one indictment, yet we cannot reverse on that account in this case, for the reason that now, looking back through a completed trial, we can see that the appellant was not actually prejudiced by the action of the court in overruling the demurrer to the indictment.”

See, also, Triplett v. State, 80 Miss. 379, 31 So. 743; Brown v. State, 81 Miss. 137, 32 So. 952.

It was proper for the court to enter judgment against the defendant upon his plea of nolo contendere. In 1 Bishop’s New Criminal Procedure, section 802, it is stated that:

“This plea is the defendant’s declaration in court that he will not contend with the prosecuting power. It is pleadable only by leave of court, and in light misdemeanors. The difference between it and guilty appears simply to be that, while the latter is a confession binding the defendant in other proceedings, the former has no effect beyond the particular case. It simply justifies the court in imposing its sentence.”

The judgment of the lower-court is affirmed.

Affirmed.