#### The State of Ohio *v.*Zurhorst.

*Disposing of obscene literature*— Indictment *for violation of Section 7027, Revised Statutes*— Need *not contain copy of alleged indecent matter, when*— Criminal *law.*

An indictment for a violation of Section 7027, Revised Statutes, which charges that the accused, at a certain time and in a certain county, “unlawfully did have in his possession two hundred and twenty-one copies of a certain article of an indecent and immoral nature, to-wit, a certain printed pamphlet of an indecent and immoral nature, entitled ‘Circular Number One — A Biographical Sketch of a Few Short Skate Politicians,’ for the' purpose nof giving away, exhibiting and publishing the said pamphlet, which said pamphlet is so indecent and immoral in its nature that the same would be offensive to the court and improper to be placed upon the records thereof,” is sufficient in law, without containing a copy of the alleged indecent and immoral pamphlet.

(No. 9782

Decided October 16, 1906.)

*233Exceptions to the judgment of the Court of Common Pleas of Erie County.

The grand jury-of Erie county, at the April term of the court of common pleas held in 1905, returned an indictment against Ed. H. Zurhorst for a violation of Section 7027, Revised Statutes, the first count of which charges: “That Ed. H. Zurhorst, late of said county, on the 16th day of March, in the year of our Lord one thousand nine hundred and five, at the county of Erie aforesaid, unlawfully did have in his possession two hundred and twenty-one copies of a_ certain article of an indecent and immoral nature, to-wit, a certain printed pamphlet of an indecent and immoral nature, entitled ‘Circular Number One — A Biographical Sketch of a Few Short Skate Politicians/ for the purpose of giving away, exhibiting and publishing the said pamphlet, which said pamphlet is so indecent and immoral in its nature that the same would be offensive to the court and improper to be placed upon the records thereof, wherefore the jurors aforesaid do not set forth the same in the indictment.” The other counts charge a violation- of the same section of the statute, but in different forms, neither of which contains a copy of the alleged libelous pamphlet.

The accused filed a motion to quash the indictment on the following grounds:

1. The said indictment does not contain a copy of the alleged libelous article, and no excuse or sufficient reason is assigned for omitting the same.

2. The said indictment is not properly endorsed.

3. Other defects in the form of the indictment *234and in the manner in which the said offense is charged, apparent upon the face of the record.

The court sustained the motion and quashed the indictment. The prosecuting attorney in behalf of the state excepted, and prepared a bill of exceptions which was duly allowed and signed by the court of common pleas by whom the decision was rendered, and the same is, by leave taken, filed in this court for its decision on. the points involved.

*Mr. Roy H. Williams,*prosecuting attorney, for the State of Ohio.

The questions involved in this case are whether obscene matter must be set out in an indictment, and, if not, what .allegations therein *will*excuse such omission.

Is it necessary to set forth obscene matter in an indictment ?

The American doctrine is that it is not only not necessary to set forth obscene matter, but that decency demands that that which, by reason of its obscenity, would be offensive to the court, should not be spread upon the record. Bishop, New Criminal Procedure, Volume I, Section 496.

Bishop, in Work on Directions and Forms, Section 626, gives a form for obscene libel which directs the omission of matter too obscene to be spread upon the record of the court. Clark’s Criminal Procedure, page 208; Hughes on Criminal Law and Procedure, Section 1272; *McNair*v. *People,*89 Ill., 443; *Commonwealth*v. *Holmes,*17 Mass., 336; *Commonwealth*v. *Tarbox,*1 Cush., *23566; *Commonwealth*v. *Wright,*139 Mass., 382; *People*v. *Girardin et al.,*1 Mich., 90.

What allegations will excuse such omission?

Bishop says that “such a description of them must be given as decency permits, and it must be added that they are too obscene for recital.” 1 Bishop’s New Criminal Procedure, 496; Clark’s Criminal Procedure, 208; Hughes’ Criminal Law and Procedure, Section 2083.

It has been repeatedly held that when the alleged obscene matter is a book or a pamphlet, it is sufficient to describe it by its title. *State*v. *Hayward,*83 Mo., 299; *State*v. *Brown,*27 Vt., 619; *Thomas*v. *State,*103 Ind., 427; *United States*v. *Clarke,*38 Fed. Rep., 500; *State*v. *Smith,*808; *Commonwealth*v. *Tarbox,*55 Mass., 66; *Reyes*v. *State,*34 Fla., 181; 15 South, 875.

*°Mr. H. C. DeRan,*for Zurhorst.

The said indictment does not contain a copy of the alleged libelous article, and no excuse or sufficient reason is assigned for omitting the same. .

The statute very broadly defines the function of a motion to quash as follows — Revised Statutes, Section 7249 (Laning Stat., 11003).

The indictment is laid under Revised Statutes, Section 7027 (Laning Statutes, Section 10741).

The indictment in question attempted to charge the defendant below with having in his possession “a pamphlet of an indecent and immoral nature,” “for the purpose of giving away, exhibiting and publishing the said pamphlet.”

The rule sanctioned by the highest- authority and approved by the most eminent courts, is very *236clearly and succinctly stated in 2d McClain on Criminal Law, Volume II, 1158.

For a general discussion of “obscenity and indecency” see Chapter 57, 2d McClain on Criminal Law. *Thomas*v. *State,*103 Ind., 419; 2 N. E., 808; *Commonwealth*v. *Tarbox,*55 Mass., 66; *Ryes*v. *State,*34 Fla., 181; 15 South, 875.

Under a statute similar to ours, the Illinois court held that the obscene matter must be either set out or sufficiently described to indicate. clearly its obscenity. *McNair*v. *People,*89 Ill., 441; *Commonwealth*v. *McCance,*164 Mass., 162; 41 N. E., 133; *State*v. *Hayward,*83 Mo., 299; 37 Am. Digest, Col., 1759 to 1764; 14 Ency. Pleading and Practice, 1157; *Hummel*v. *State,*8 Nisi Prius, 49; *Ellars*v. *State,*25 Ohio St., 388; *Lamberton*v. *State,*11 Ohio, 284; *Adams*v. *State,*14 Decisions, 257.

It will be observed that the offense attempted to be charged in the indictment is purely a statutory one. ■ Moreover, the statute creating the offense of having in possession obscene literature, does not define in any way the term “obscene literature.” The particular rules of pleading, which govern indictments charging offenses purely statutory, depend upon the character of the statute. Statutes are classified by text-writers into the following three distinct classes—

1. Statutes which create an offense without defining it — as if it forbids a thing by its common law name, leaving the definition to the common law, the indictment when statutory is so only in its conclusion, the rest being framed as upon the common law. 1 Bishop’s New Criminal Procedure, page 360, Section 610.

*2372. Statutes which partly define the offense which they create, and

3. Statutes which create and wholly define an offense.

Section 7027 clearly belongs to the first class of statutes indicated, and is not such a statute as comes within the rule permitting an indictment to charge the offense in the words of the statute.

Again, it is for the court to determine what constitutes obscene literature. If there are no allegations in the indictment, either setting out the obscene matter in *haec verba,*or sufficiently describing it to enable the court to determine whether the pamphlet alleged to be obscene, is in fact and in contemplation of law, within the inhibition of the statute, the matter can not be brought to the attention of the court.

It has been frequently held in Ohio that if the language of the statute does not sufficiently inform the accused of the facts concerning the crime with which he is charged to enable him to make a defense, it is riot sufficient to charge the crime in the words of the statute. *Mitchell*v. *State,*21 Circuit Court, 24; s. c. affirmed, 65 Ohio St., 565.

The Ohio rule is aptly stated in the case of *Hogue*v. *State,*3 Circuit Court, N. S., 315; s. c., 13 Circuit D., 567; *Sutcliffe*v. *State,*18 Ohio, 469; *Sharp*v. *State,*19 Ohio, 379; *Lougee*v. *State,*11 Ohio, 69; *Lamberton*v. *State,*11 Ohio, 282; *Poage*v. *State,*3 Ohio St., 229; *Dillingham*v. *State,*5 Ohio St., 280.

As suggested, the statute providing the offense of “having in possession obscene literature” does not define “obscene literature.”

*238While the term “obscenity” can not be said to be a technical term of the law, and is not susceptible of exact definition in its jurisdictional uses, it may be defined generally as that which is offensive to decency or chastity, which is immodest, indelicate or impure, exciting lewd thoughts of an immoral tendency. 21 Am. & Eng. Ency. Law, 759; Wharton’s Crim. Law, Sections 1431 and 1432; 2 Bouvier’s Law Diet., 325.

Price, J.

It is our opinion that the court of common pleas erred in sustaining the motion to quash the indictment, and some reasons will be given in support of that opinion.

Nothing is now claimed for the second ground of the motion, and the same is abandoned.

The accused is not charged with libel as defined in Section 6828, Revised Statutes, which is a crime against the person, but he is charged with violating Section 7027, Revised Statutes, which is part of Chapter 9, entitled: “Offenses against chastity and morality.” The part of the section here pertinent reads: “Every person who, within the state of Ohio, sells, or lends, or gives away, or in any manner exhibits, or offers to sell, or to lend, or to give away, or in any manner to exhibit, or otherwise publishes or offers to publish in any manner, or has in his possession for any such purpose, any obscene, lewd or lascivious book, pamphlet, paper, writing, advertisement, circular, print, picture, photograph, drawing or other representation, figure or image, or of paper or other material or any cast, instrument or other article of an indecent or immoral nature, or * * * shall, on conviction, be imprisoned,” etc.

*239While the title is not controlling in the construction of a statute, it sometimes throws light on the legislative purpose, and we find that the original section upon which the several subsequent amendments have been based, and the several amendments themselves, bear titles similar to that heading the present statute, to-wit: “Penalty for disposing of, exhibiting, advertising, manufacturing, etc., obscene literature, drugs intended for criminal purposes, etc.” See 91 O. L., 330. It is sought by this enactment to protect the public from the baneful effects and influence of obscene, lewd and lascivious books, pamphlets and other written or printed matter. These publications are made criminal in the same section which prohibits the advertisement of drugs, etc., intended for criminal purposes, and the entire section aims to prevent the contamination of our youth and the demoralization of the public mind. It forbids one to have in his possession such poisonous literature, advertisements, etc., for the purpose of selling, lending or giving away the same. It is Well enough and it is good practice, that an indictment under this statute should with reasonable certainty apprise the accused of what he is called upon to meet — such degree of certainty as will afford him protection in the exercise of his legal rights in making a defense, and also to furnish a record of conviction or acquittal, that could be interposed if indicted the second time for the same offense. But we doubt whether the strict rules of pleading- at common law in cases of criminal libel, should be enforced in a prosecution under this statute. As to some of the different offenses defined therein, the application of such rules might *240defeat the purpose of the Legislature, or otherwise render it impracticable.'

However this may be (and we do not decide it), if we look to this indictment, it is seen that all reasonable rules have been complied with, unless nothing short of an exact copy of the scurrilous pamphlet must be set out therein. The defendant is charged with having “in his possession two hundred and twenty-one copies of a certain article of an indecent and immoral nature, to-wit, a certain printed pamphlet of an indecent and immoral nature, entitled: 'Circular Number One — A Biographical Sketch of a Few Short Skate Politicians/ for the purpose of giving away, exhibiting and publishing the said pamphlet, which said *pamphlet*is so indecent and immoral in its nature that the same would be offensive to the court arid improper to be placed upon the records thereof, wherefore the jurors aforesaid do not set forth the same in the indictment.” The accused, according to the indictment, was in possession not only of one copy of the pamphlet, which might be by accident or inadvertence, but was in possession of over two hundred, and that, too, for the purpose of selling, giving away, exhibiting, etc. The title is bold, and it announces that it is only circular number one, indicating that other numbers will follow. It is alleged that the pamphlet — not a part of it — -is so indecent and immoral in its nature, that the same would be offensive to the court and improper to be placed on the records. If such allegation is true, we know that a copy of the offensive contents in the indictment would find a permanent place on the records of the court, a mode of publication greatly *241to be desired by the disseminators of such scandalous literature.

It was said by Parker, C. J., in *Commonwealth*v. *Holmes,*17 Mass., 337, “It can never be required that an obscene book and picture should be displayed upon the records of the court, which must be done, if the description in these counts is insufficient. This would be to require that the public itself should give permanency and notoriety to indecency in order to punish it.” The indictment in that case charged the accused with publishing a lewd and obscene print contained in a certain book entitled: “Memoirs of a woman of pleasure.” The indictment did not contain a copy of the alleged indecent and lewd matter, but alleged that the same would be offensive to the court and improper to appear upon the records of the same. It would seem that that allegation has been literally followed in the present indictment. The above case was cited with approval in *Commonwealth*v. *Tarbox, 1*Cushing, 66-72. The court there states the general rule in that state to be that “in indictments for offenses of this description (printing and publishing obscene matter), it is not always necessary that the contents of the publication should be inserted; but whenever it is necessary to do so, or whenever the indictment undertakes to state the contents, whether necessary or not, the same rule prevails as in the case of a libel; that is to say, the alleged obscene publication must be set out in the very words of which it is composed, and the indictment must undertake or profess to do so by the use of appropriate language. The excepted cases occur whenever a publication of this character is so obscene as *242to render it improper that it should appear on record, and then the statement of the contents maybe omitted altogether, and a description thereof substituted; but in this case, a reason for the omission must appear in the indictment.” The doctrine of these cases is approved in *People*v. *Girardin et al.,*1 Mich., 90, and by many text-writers. See Bishop’s New Criminal Procedure, Volume I, Sections 496-7.

The same author in Section 790, Volume II, says that “it is the doctrine of the American courts that a libel too obscene to appear with decency on the record may be described in a more general way, and then an averment of the too great obscenity of its words will be accepted instead of their tenor.” In Criminal Law and Procedure by Plughes, Section 2182, it is said: “It is-necessary to set out the obscene publication in the indictment, unless it is in the-hands of the defendant or out of the power of the prosecution, or the matter is too gross and obscene to be spread on the records of the court, either of which facts, if existing, should be averred, in the indictment.”

To the same effect is Section, 1064 of McLain on Criminal Law. See also *Price*v. *United*States, 165 U. S., 311, where the same questions are discussed and decided.

While the English courts generally have held to a more stringent rule of criminal pleading in such cases, we think the American courts maintain the better and more reasonable practice.

The indictment before us complies with all the requirements of the foregoing and many other authorities. The accused is charged with being *243in possession of the obscene pamphlets for the purpose of selling and giving away, in order that their contents might be sown upon the public. He had given the document what he regarded as a distinct and appropriate title, and he is supposed to know the contents of what he had in his possession. The indictment says the pamphlet is so obscene and immoral in its nature that to copy it in the indictment would be offensive to the court and improper to appear on the records, of the same. Surely the state alleged enough to apprise him of what he had to meet at the trial, even if we apply the common law rules of pleading in criminal libel. To gratify his claim against this indictment would aid him in disseminating the evil contents of his own work. But courts will never allow their records to be polluted by obscene and indecent matter. To do this, would be to require a court of justice to perpetuate and give notoriety to an indecent publication.

But it is said that, without a copy of the objectionable matter in the indictment, the defendant might, on a second indictment for the same offense, be embarrassed or defeated in his plea of former conviction or acquittal. . We see no ground for such fearful anticipation. According to the indictment, th'e accused has prepared certain earmarks of his pamphlet. It has a certain name and number. The title is somewhat spectacular, and if there is any shortcoming in these, on pleading to a second indictment for the same offense, if such an event should unfortunately ever occur, he can give proper parol evidence to support the identity of the charge. See *Bainbridge*v. *State,.*30 Ohio St., 264, where it is held: “On plea of. *244former conviction or acquittal, the defendant must prove the identity of the two offenses. He may show this by parol evidence.” That entire case supports our proposition.

We are unanimous in sustaining the exceptions.

*Exceptions sustained.*

Shauck, C. J., Crew, Summers, Spear and Davis, JJ., concur.