State v. Kuebel , 241 Ind. 268 ( 1961 )

Bobbitt, C. J.

The State of Indiana prosecutes this appeal from a judgment of the Marion Criminal Court, Division One, sustaining appellee’s motion to quash an amended affidavit charging him with the possession and sale of obscene matters in violation of Acts 1905,-ch. 169, §462, as amended by Acts 1957, ch. 133, §1, p. 241, being §10-2803, Burns’ I960- Cum. Supp.

The sole error here assigned is, “That the Court erred in sustaining Appellee’s Motion to Quash the Amended Affidavit.”¹

The motion to quash alleges that (1) the facts stated in each count do not constitute a public offense; (2) that each count does not state the offense with sufficient certainty; (3) that the facts stated are duplicitous, and (4) that the statute under which prosecution was commenced is unconstitutional in that it violates certain provisions of the Federal and State Constitutions, as are specifically set out in the motion, but we need not burden this opinion by repeating them here.

In our considered judgment the present case cannot be concluded upon other grounds² and we, therefore, proceed directly to a consideration of the constitutional questions presented, without regard to the others raised by the motion to quash.

First: Appellant concedes that if the statute is construed to require that the accused have knowledge of the nature of the book, article, pamphlet, etc., mentioned in the statute, then it would be constitutional, but if it “is construed to eliminate knowledge and impose strict liability”³ then it violates the constitutional provisions which guarantee freedom of speech.⁴

The determinative question here then is: Does the statute (§10-2803, swpra) eliminate all elements of scienter?

To support its contention that while the statute does not use the word “knowingly” or “wilfully,” this does not necessarily eliminate proof of knowledge, the State relies upon the following statement in Thomas v. The State (1885), 103 Ind. 419, 433, 434, 2 N. E. 808,

“The statute, in defining the offence, does not use the word ‘knowingly,’ nor the word ‘intentionally;’ but, evidently, in order to make out the offence, it was necessary for the State to prove guilty knowledge on the part of appellant. It can not be conceded that if some other person had written the letter, put it in an envelope directed to Miss Mc-Quinney, and so placed it with appellant’s mail that he deposited it in the post-office without notice or knowledge, he would have been guilty of the of-fence charged. To so hold would be to turn an innocent oversight into a crime. This the statute was not intended to do. It is to punish the wicked and guilty, and not those who have neither knowledge of, nor intention in, the act.”

In the Thomas case appellant was charged with violating §1997, R. S. 1881, by sending a “lewd .and obscene letter to a young girl.”

At page 437 of 103 Ind., this court further said:

“Here, as we have seen, the gravamen of the offence is not the writing of the lewd and obscene letter, but the depositing of it in the post-office.”

The question there for decision was: Did or did not the defendant-appellant deposit the letter in the post-office? The statement quoted above and upon which appellant relied, was made in connection with a consideration of the admission into evidence of other letters bearing the signature of Thomas, for the purpose of showing that he “knowingly” placed the letter in the post-office as charged in the affidavit.

The question of scienter or the imposition of strict liability was not raised in the Thomas case, and the statement therefrom and to- which reference is made by appellant, must be considered dicta insofar as its application to the question presently before us is concerned. Therefore, that case is not controlling here.

The legislative intent must control our decision here if it can be ascertained, and in determining this it is proper to consider the history of the statutory enactment involved. Merchants Nat. Bank v. Delaware School Tp. (1916), 185 Ind. 658, 666, 114 N. E. 450.

Section 10-2803, supra, and the statute involved in the Thomas case, (Acts 1905, ch. 169, §463, p. 584, being §10-2804, Burns’ 1960 Cum. Supp.), were originally §1996 and §1997, R. S. 1881, respectively.

Subsequent to the decision in the Thomas case in 1885, the Legislature, in the 1905 session, re-enacted verbatim, in the parts here relevant, §1997, R. S. 1881, supra, as §463 of ch. 169, Acts 1905, except the word “knowingly” following the word “whoever” in the first line of the section was added, thus expressly providing for scienter.

Section 1996, R. S. 1881, supra, was, at the same time, re-enacted verbatim, in parts here relevant, as §462 of ch. 169, Acts 1905. However, in the re-enactment of §1998, supra, the 1905 session of the Legislature did not add the word “knowingly” as it did in the re-enactment of §1997, supra. This action seems to us to indicate a clear and unequivocal intention of the Legislature to impose strict liability in §10-2803, supra, without any element of scienter or knowledge on the part of the person charged. State ex rel. Booth v. Beck Jewelry Enterprises (1942), 220 Ind. 276, 282, 41 N. E. 2d 622, 141 A. L. R. 876; United States v. Atchison, T. & S. F. R. Co. (1911), 220 U. S. 37, 55 L. Ed. 361, 31 S. Ct. 362; Grand River Dam Authority v. Federal Power Comn. (1957), 10 Cir., 246 F. 2d 453, 455.

There are many instances in our criminal code where scienter or knowledge is made an element of the crime, and the Legislature has done so in specific and appropriate language as illustrated in each of the statutes mentioned in footnote 5.

The State also relies upon certain cases arising under a former intoxicating liquor law^{5 6} in its efforts to persuade us to read into the statute here a requirement of knowledge. However, only one of these cases involved the question of knowledge and it is neither controlling nor persuasive here because of the difference in the questions involved.

Paraphrasing the words of Justice Brennan in Smith v. California (1959), 361 U. S. 147, 152, 4 L. Ed. 2d 205, 211, 80 S. Ct. 215, there is no specific constitutional inhibition against the imposition of strict liability in certain penal statutes, such as food and drug legislation, “but the constitutional guarantees of the freedom of speech and of the press stand in the way of imposing a similar requirement on the bookseller.”

The statute in plain and simple language states “whoever sells ... or offers to sell ... or in any manner exhibits, or has in his possession, with or without intent to sell. . . .” (Emphasis supplied.) As may readily be observed, no requirement for scienter is expressly provided in the statute, but on the contrary the element of intent is expressly eliminated, and in our judgment if the Legislature had intended to make knowledge an element of the crime it would have specifically done so at the time it amended §1997, swpra, in the manner above noted.

While we recognize that an act of the Legislature will be upheld if reasonably possible, yet, this rule does not require or authorize the court to amend a statute by judicial decree in order to sustain its validity.

The Supreme Court of the United States recently held in Smith v. California, supra (1959), 361 U. S. 147, 4 L. Ed. 2d 205, 80 S. Ct. 215, that a city ordinance of Los Angeles, California, which provided,

_ “It shall be unlawful for any person to have in his possession any obscene or indecent writing, book, pamphlet, picture, photograph, drawing, figure, motion picture film, phonograph recording, wire recording or transcription of any kind in any of the following places: (Here naming them.),”

included no element of scienter and imposed a strict and absolute criminal liability on the person charged. At page 211, 4 L. Ed. 2d, the court said:

“By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public’s access to constitutionally protected matter. For 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 offense defined in the statute here in question consists solely of the sale or possession of certain articles found upon judicial investigation to be obscene, lewd, etc., as was the case in Smith v. California, supra. In our judgment the statutory definition of the criminal offense here, as was true in the Smith case, includes no element of “scienter— knowledge of the book” and, as did the ordinance there, the statute here imposes a strict or absolute criminal liability.

Second: Does the statute involved herein, by its imposition of a strict and absolute criminal liability violate any provision of the Constitution of the United States or the Constitution of Indiana, as asserted by appellee?-

Chief Justice Hughes declared for the United States Supreme Court in Near v. Minnesota ex rel. Olson (1931), 283 U. S. 697, 707, 75 L. Ed. 1357, 1363, 51 S. Ct. 625, as follows:

“It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the 14th Amendment from invasion by state action. It was found impossible to conclude that this essential personal liberty of the citizen was left unprotected by the general guaranty of fundamental rig-hts of person and property.”

The Act here in question is subject to the same infirmities as was the Los Angeles ordinance, which was held in Smith v. California, supra, to be in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States.

If the Los Angeles ordinance is invalid because it tends seriously to restrict the freedom of speech and of the press, we are impelled to conclude that §10-2803, supra, also violates §1 of the Fourteenth Amendment to the Constitution of the United States for the same reasons. See: Smith v. California, supra; People, etc. v. Engel (1960), 7 N. Y. 2d 1002, 166 N. E. 2d 845.

Article 1, §9, of the Constitution of Indiana provides:

“No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.”

The State may in the proper exercise of the police power prevent the sale and distribution of obscene matter, but when this is attempted in a manner which tends to restrict the right of free speech or expression, then the right of free speech guaranteed by Art. 1, §9, swpra,, must be weighed in the balance against the requirements of the public safety and welfare which are asserted by the restriction sought.

When this test is applied to the situation with which we are now confronted, the scales weigh in favor of the right of free speech and free expression.

The imposition of a strict liability by the statute here has the effect of restricting the free interchange of thought and opinion by requiring a bookseller to act at his peril in the sale and distribution of books and periodicals, whether obscene or not obscene. Under such circumstances the bookseller will restrict and limit the books and periodicals stocked to those which, after inspection, he has found to be entirely free of any possibility of containing matter which might cause his summary arrest merely for having such items in his store. This type of censorship would result in preventing the sale and distribution of many books and periodicals which a court might finally determine not to be obscene, thereby imposing a censorship exceeding the boundaries which are prescribed by the limits beyond which the police power cannot operate.

Since the statute here, without making some requirement for scienter, i.e., knowledge of the contents of the books, periodicals, pamphlets, etc., for the possession of which appellee here is charged, makes it a criminal offense for any person to sell, offer to sell, or have in his possession, obscene matters particularly described in the statute, tends to restrict and inhibit the right of free speech and impose a restraint upon the interchange of thought and opinion, it is invalid under the provisions of Art. 1, §9, of the Constitution of Indiana, supra.

Third: It is suggested that the entire section is not unconstitutional because of the strict liability feature since certain prohibited acts, such as the manufacture or printing of obscene literature, necessarily implies a knowledge of the contents.

While a single statute may be partially valid and partially invalid, a determination of whether or not it is severable rests ultimately upon a judicial determination of the legislative intent.

The purpose of the statute here was clearly to prevent the dissemination of literature or other media which tend to corrupt the morals of the community by prohibiting the sale, possession, advertisement or production by manufacturing or otherwise, of obscene, lewd, indecent, or lascivious books, pamphlets, or other articles of indecent or immoral use.

In determining the legislative intent we may properly consider the object which the Legislature sought to accomplish, but the test of severability is whether or not the Legislature would have passed the statute had it been presented without the invalid features. 2 Sutherland Statutory Construction, 3d ed., §2404, p. 179.

In our judgment the invalid part of §10-2803, supra, was the inducing cause for its enactment, the other provisions which prohibit acts such as the manufacture or printing of the things, the sale and distribution of which was sought to be prohibited, being only incidental to and in aid of the main purpose.

In our judgment the principal purpose of the Act and the intent of the Legislature is defeated by the elimination of that part of it which we have declared to be invalid and, therefore, the entire section, §462 of ch. 169 of Acts 1905, as amended, being §10-2803, Burns’ 1960 Cum. Supp., supra, is invalid and void. To hold otherwise would be changing the legislative intent. This the court may not do. Only the Legislature can do that. Fairchild, Prosecuting Atty., etc. v. Schanke, et al. (1953), 232 Ind. 480, 494, 113 N. E. 2d 159.

For the foregoing reasons the judgment of the trial court must be affirmed.

Judgment affirmed.

Landis and Jackson, JJ., concur. Achor, J., dissents with opinion. Arterburn, J., dissents with opinion.

1 . Count I of the amended affidavit, omitting formal parts, is as follows:

“[T]hat Ray Joseph Kuebel late of said County and State, on or about June 17, 1959, at and in the County and State aforesaid, did then and there unlawfully have possession of and offered for sale the following, to-wit: Scene, Vol. 5, No. J, August, 1959 Issue the same being an obscene, lewd, indecent or lascivious book, pamphlet, paper, drawing, picture, or photograph, said Scene, Vol. 5, No. 4, August, 1959 Issue, being too obscene, lewd, indecent and lascivious to be set out herein and to encumber the records of this Court, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana.”

Counts II, III, IV, V and VI are the same as Count I, except a different book or pamphlet is charged.

2 . See: St., Gross Inc. Tax Div. et al. v. Pearson Constr. Co. (1957), 236 Ind. 602, 607, 141 N. E. 2d 448.

3 . See: Hall, Principles of Criminal Law, p. 280, for definition of “strict liability.”

4 . Article 1, §9, Constitution of Indiana; and Fourteenth Amendment of the Constitution of the United States.

5 . Burns’ 10-2101, False Claims; Burns’ 10-2102, Forgery; Burns’ 10-3017, Receiving Stolen Goods; Burns’ 10-3018, Receiving Stolen Goods from Another State.

6 . Acts 1925, ch. 48, §4.