State v. Doty

The admitted facts in regard to the transaction in question are as follows: The defendant carried on in Cedar Rapids a picture gallery called the “Riverside Studio..” While thus engaged, two women applied to him to take' pictures of themselves, and he complied with their request, and made several tin type pictures of them. One of the pictures was. taken of both women, and another of one of them, when nude. The pictures were completed by the defendant, and delivered to the women, who paid him twenty-five cents for each picture. It is clear, and not denied, that the pictures taken of the women when nude were obscene. The def endant was convicted under section 1 of chapter 177 of the Acts of the Twenty-first General Assembly, which contains the following: “Whoever sells, or offers for sale or gives away * * * 'any obscene, lewd, indecent, or lascivious books, pamphlets, paper drawing, lithograph,, engraving, picture, photograph, model, cast, or any instrument or article of indecent or immoral use, * * * on conviction thereof, shall be punished by a fine of not more than one thousand dollars, nor less than fifty dollars, or 'by imprisonment in the county jail not more than one year, or both such *701fine and imprisonment at the discretion of the court.” It is the theory of the appellant that he did not keep for sale, nor sell, nor give away, the pictures, within the meaning of the statute; that what he did was merely to make the pictures, the indecent portions of which were furnished by the women represented. The theory does not find support in the facts of the case, nor is it reasonable. The women 'desired and bargained for the obscene pictures, and that they contributed to the pictures by exposing themselves, when naked, before the camera, did not affect the character of the transaction. The products of that exposure and of the materials and skill used by the defendant were the obscene pictures. If it be true that the women had some rights in the pictures before they were delivered, as a right to prevent their use or delivery to other persons, — a question we do not decide,- — 'the fact did not give the women any right to possess the pictures before the purchase price had been paid. Until that time the pictures belonged to the defendant, and his liability for the sale was not affected by the- fact that his ownership may have been qualified by some rights possessed by the women. When he delivered the pictures to them, and received inreturn twenty-five cents for each picture, he sold them within the meaning of the statute, and the fact that he made them was an aggravation o.f, rather than a defense to, the crime of which he was convicted. No excuse for what he did is shown or attempted. When the women applied for the pictures, they told him they had a bet with a man, whom they named, to the effect that they ■dared to -have pictures taken of themselves when nude. No question as to the development of art, or the dis semination of useful knowledge for lawful purposes, is involved in the case; and we have no occasion to determine whether the acts of the defendant would have been sanctioned by law under any circumstances. That *702his act in selling the obscene pictures he hucl made, under the facts admitted in this case, was a violation of law, is clear. The views we have expressed dispose of all the questions presented for onr consideration. We do not find that the district court erred- in refusing instructions to the jury asked by the -defendant, nor in the charge given, and- its- judgment is affirmed.