State v. Hudson County News Co.
State v. Hudson County News Co.
Opinion of the Court
The opinion of the court was delivered by
On February 15, 1960 the Essex County Grand Jury returned indictments which charged that the Hudson County News Company did, without just cause, sell
Substantially all of the states have statutes which declare the distribution of obscene material to be criminal conduct and punishable as such. See American Law Institute, Model Penal Code, Tentative Draft No. 6, p. 5 (1957). In our own State there has been such legislation for almost a century. See, for example, L. 1868, c. 536; L. 1869, c. 440; L. 1898, c: 235, § 53; R. S. 2:140-2. When the 1951 revision of the laws relating to the administration of civil and criminal justice was adopted, it provided in N. J. S. 2A :115-2 that anyone who, without just cause, utters or exposes to the view of another or possesses with intent to utter or expose to the view of another, or to sell, “any obscene or indecent book, pamphlet, picture or other representation” is guilty of a misdemeanor. In 1957 and again in 1959 the Legislature amended N. J. S. 2A.115-2 to embody express references to those who shall “sell, import, print, publish, loan, give away,” etc. any obscene or indecent
Our Legislature has never attempted a definition of obscenity and while our courts have referred to the imprecise nature of the obscenity concept they have not at any time questioned that the statutory terminology in its present form is sufficient to withstand constitutional attack. See State v. Kohler, 40 N. J. Super. 600 (App. Div. 1956), certification denied, 22 N. J. 225 (1956); State v. Weilershausen, 11 N. J. Super. 487 (App. Div. 1951), certification denied, 7 N. J. 79 (1951); cf. Adams Newark Theatre Co. v. City of Newark, 22 N. J. 472, 480 (1956), affirmed 354 U. S. 931, 77 S. Ct. 1395, 1 L. Ed. 2d 1533 (1957); Adams Theatre Co. v. Keenan, 12 N. J. 267, 273 (1953); McFadden’s Lounge, Inc. v. Div. of Alcoholic Bev. Control, 33 N. J. Super. 61 (App. Div. 1954); Bantam Books, Inc. v. Melko, 25 N. J. Super. 292, 302 (Ch. Div. 1953), modified 14 N. J. 524 (1954). In 1957 the American Law Institute submitted a proposed definition to the effect that a thing is to be considered obscene “if, considered as a whole, its predominant appeal is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion and if it goes substantially beyond customary limits of candor in description or representation of such matters.” See Tentative Draft No. 6, supra, at p. 1, et seq. Shortly thereafter the
Because of the grant of leave to appeal from the trial court's interlocutory orders, these proceedings are now before us on sparse records which do not even contain the material alleged by the State to be obscene. It seems to us that the preferable course would have been to have denied the leave, thus deferring appellate consideration until after trial; if the trial resulted in acquittal there would have been no occasion for review and, if conviction resulted, the appeal would have been on the basis of complete records enabling fair judicial treatment of the concrete rather than the abstract. See United States v. International Union, 352
In People v. Smith, 161 Cal. App. 2d Supp. 860, 327 P. 2d 636 (1958), the California Superior Court upheld the criminal conviction of a bookseller for violation of a Los Angeles City ordinance which made it unlawful for any person to have in his possession any obscene writing or book in any place of business where books were sold or
Other courts have wisely taken a course which differs from the state court’s mode of literal construction in People v. Smith, supra. See Morissette v. United States, 342 U. S. 246, 263, 72 S. Ct. 240, 96 L. Ed. 288, 300 (1953); People v. Finkelstein, 9 N. Y. 2d 342, 214 N. Y. S. 2d 363, 174 N. E. 2d 470 (1961). In State v. Sul, 146 Conn. 78, 147 A. 2d 686 (1958), the defendant was convicted of violating Section 8567 of the General Statutes of Connecticut which provides, in effect, that any person who sells or possesses
“The omission of the word ‘knowingly’ is not conclusive upon the question whether, to secure a conviction, the prosecution must prove that the accused knew that the materials which he possessed were obscene and indecent. Many statutes defining crimes do not contain the word ‘knowingly’ or its equivalent. State v. Gaetano, 96 Conn. 306, 316, 114 A. 82, 15 A. L. R. 458; see State v. Kinkead, 57 Conn. 173, 179, 17 A. 855; Barnes v. State, 19 Conn. 398, 404; 1 Wharton, op. cit., § 17. Whether knowledge is a necessary element in proving that a prohibited act is a crime is a matter of legislative intention. United States v. Balint, 258 U. S. 250, 252, 42 S. Ct. 301, 66 L. Ed. 604. Section 8567 specifically requires proof of possession with intent to sell, etc. See State v. Nathan, 138 Conn. 485, 487, 86 A. 2d 322. Whether guilty knowledge is to be implied as an essential part of a crime when the statutory definition does not mention it must be determined from the general scope of the statute and the nature of the acts to be avoided. State v. Gaetano, supra, 96 Conn. 316, 114 A. 85; State v. Nussenholtz,. 76 Conn. 92, 96, 55 A. 589; Myers v. State, 1 Conn. 502, 504.
* * * The purpose of the statute is to prevent the selling, showing or offering of obscene or indecent material falling within the description stated. It must be assumed that the legislature was aware that such material was likely to be sold, offered or shown by one who knew from its nature that it would have an appeal to prurient interest. Other statutes provide for the seizure and destruction of obscene and indecent materials regardless of who possesses them or his knowledge or intent in such possession. General Statutes §§ 8752, 8753, 8754. Section 8567 requires proof of intent. Intent is a mental process, and under the terms of the section it is the obvious intendment of the legislature that the word ‘intent’ should imply knowledge that the material is, in fact, obscene or indecent. Ordinarily intent can be proven only by circumstantial evidence. State v. Nathan, 138 Conn. 485, 488, 86 A. 2d 322. The same holds true in this instance of knowledge of the character of the material possessed. State v. Heno, 119 Conn. 29, 32, 174 A. 181, 94 A. L. R. 696; State v. Weiner, 84 Conn. 411, 417, 80 A. 198.*292 We hold that proof of knowledge that the proscribed material is obscene or indecent is requisite to a conviction under § 8567.” 147 A. 2d, at pp. 690, 691
In Cutter ads. State, 36 N. J. L. 125 (Sup. Ct. 1873), the defendant was indicted under a statute which provided that where a justice of the peace received, under color of his office, a fee which was not allowed by law, he was guilty of a crime. He defended on the ground that he believed that he was legally entitled to the fee but this defense was overruled by the trial court. On appeal, the former Supreme Court reversed and rejected the State’s contention that the statute should be construed literally as declaring the taking of an illegal fee to be criminal without regard to the intent of the recipient. In the course of his opinion, Chief Justice Beasley had this to say:
“In morals it is an evil mind which makes the offence, and this, as a general rule, has been at the root of criminal law. The consequence is that it is not to be intended that this principle is discarded, merely on account of the generality of statutory language. It is highly reasonable to presume that the law makers did not intend to disgrace or to punish a 'person who should do an act under the belief that it was lawful to do it. And it is this presumption that fully justifies the statement of Mr. Bishop, ‘that a statute will not generally make an act criminal, however broad may be its language, unless the offender’s intent concurred with his act.’ 1 Crim. Law, § 80.” 36 N. J. L., at p. 126
See State v. De Meo, 20 N. J. 1, 13-14 (1955).
In Halsted v. State, 41 N. J. L. 552, 585 (E. & A. 1879), the court held that guilty knowledge was not to be implied as an essential element of a statutory crime relating to' the expenditure of public funds in excess of appropriations. Chief Justice Beasley pointed out that in some instances such as Cutter, supra, the requirement of guilty knowledge was implied, whereas in others it was not and he stressed that the matter was entirely one of statutory construction. He noted that the duty of not disbursing public funds beyond appropriations was a plain one which
Since absolute criminal liability, such as in Halsted, may harshly result in the imprisonment of persons who are not morally culpable, it has understandably received criticism in academic circles. See State v. De Meo, supra, 20 N. J., at p. 11; Mueller, “Mens Rea and The Law Without It,” 58 W. Va. L. Rev. 34 (1955). The modern judicial trend is fortunately the other way. See Mueller, supra, 34 N. Y. U. L. Rev., at p. 88. The obscenity statute, when viewed against the background of dealers who may have thousands of publications including many which may readily be the subject of disparate views, may hardly be considered, as was the statute in Ealsted, as imposing a plain and simple duty which may be fulfilled without any difficulty. See Lockhart and McClure, supra, 45 Minn. L. Rev., at pp. 105-108. While the extrinsic history of our obscenity statute affords little information as to whether the Legislature ever specifically discussed and passed upon the element of guilty knowledge, the terms of the statute itself give some enlightenment. Thus, unlike the ordinance in People v. Smith, supra, 161 Cal. App. 2d Supp. 860, 327 P. 2d 636, and like the statute in State v. Sul, supra, 146 Conn. 78, 147 A. 2d 686, our obscenity statute does not refer to persons who simply possess obscene material but refers to persons who
The State urges that scienter should be viewed as an implied element of N. J. S. 2A:115-2. We agree and are satisfied that the statute should now be construed as though it expressly embodied the word “knowingly.” This approach is strongly reenforced by the settled doctrine that where a statute is reasonably open to such construction it should be read so as to render it constitutional. See Woodhouse v. Woodhouse, 17 N. J. 409, 416 (1955); In re Village of Loch Arbour, 25 N. J. 258, 264 (1957); State v. Monroe, 30 N. J. 160, 165 (1959); 3 Sutherland, Statutory Construction § 5823, p. 118 (3d ed. 1943). In People v. Finkelstein, supra, 9 N. Y. 2d 342, 214 N. Y. S. 2d 363, 174 N. E. 2d 470, the New York Court of Appeals was recently called upon to construe its obscenity statute in the light of the Supreme Court’s holding in Smith v. People of State of California, supra, 361 U. S. 147, 80 S. Ct. 215, 4 L. Ed. 2d 205. The New York statute (§ 1141 of the Penal Law) provides, in part, that any person who sells, or possesses with intent to sell, any obscene book is guilty of a misdemeanor. In discussing the proper interpretation of the statute, Judge Burke had this to say:
“Although our statute might possibly be interpreted to exclude scienter, we feel, inter alia, guided by the strong constitutional presumption attending legislative enactments (Wiggins v. Town of Somers, 4 N. Y. 2d 215, 218, 173 N. Y. S. 2d 579, 581, 149 N. E. 2d 869, 871; Lincoln Bldg. Associates v. Barr, 1 N. Y. 2d 413, 415, 153 N. Y. S. 2d 633, 634, 135 N. E. 2d 801, 802) that the statute was not intended to unreasonably restrict or inhibit our inalienable ‘liberty’ protected by due process (see Smith v. People of State of California, supra). A reading of the statute as a whole clearly indicates that only those who are in some manner aware of the character of the material they attempt to distribute should be punished. It is not innocent but calculated purveyance of filth*295 which is exorcised, and a mere omission of the word ‘scienter’ need not be construed as an attempt to eliminate that common-law element of the crime. See Morissette v. United States, 342 U. S. 246, 72 S. Ct. 240, 96 L. Ed. 288; People v. Katz, 290 N. Y. 361, 49 N. E. 2d 482.
In any event, the statute is at least susceptible of either interpretation, and we are, therefore, clearly obliged by statute and decisional law to embrace that which will preserve its validity. McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 150; Matter of Coates, 9 N. Y. 2d 242, 213 N. Y. S. 2d 74, 173 N. E. 2d 797; Matthews v. Matthews, 240 N. Y. 28, 34-35, 147 N. E. 237, 238-239, 38 A. L. R. 1079; Robert Dollar Co. v. Canadian Car & Foundry Co., 220 N. Y. 270, 275, 115 N. E. 711, 712; Lyons v. Goldstein, 290 N. Y. 19, 23, 47 N. E, 2d 425, 427, 146 A. L. R. 1422; People ex rel. Morriale v. Branham, 291 N. Y. 312, 317, 52 N. E. 2d 881, 882. ‘No statute should be declared unconstitutional if by any reasonable construction it can be given a meaning in harmony with the fundamental law.’ People ex rel. Simpson v. Wells, 181 N. Y. 252, 257, 73 N. E. 1025, 1026; Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38, 44, 80 N. E. 2d 322, 324. A conviction, therefore, cannot be upheld without proof of the element in question which we find required by section 1141.” 174 N. E. 2d, at p. 471
See also State v. Jackson, supra, 356 P. 2d, at pp. 498-499.
We reject the appellants’ first contention that the statute does not contain any requirement of scienter and is therefore unconstitutional and come now to the second contention that the "without just cause” phrase is too vague on its face and therefore violative of due process requirements. We, of course, recognize and give effect to the pertinent decisions which dictate that a criminal statute, particularly one which may affect constitutional freedoms, must speak with reasonable certainty and fairly inform as to the conduct being prohibited. See Winters v. People of State of New York, supra, 333 U. S., at pp. 515-516, 68 S. Ct., at p. 670, 92 L. Ed., at pp. 849-850; cf. Scull v. Commonwealth of Virginia, 359 U. S. 344, 353, 79 S. Ct. 838, 3 L. Ed. 2d 865, 871 (1959). And while our attention has been called to the many cases in other fields and contexts where courts have given meaning to and sustained statutes embodying a phrase identical with or comparable to the "without just cause” phrase, we may readily sustain the validity of
The lower court pointed out that persons, in the bona fide exercise of the interest in “art, science, medicine, research, study or any other lawful or proper scope or purpose,” may possess obscene material with just cause. It considered the legislative phrase as expressly affording immunity in such instances; and it expressed the view that in common understanding the statutory phrase means “without legal or lawful grounds or without a fair and honest cause or reason, based on good faith.” The American Law Institute has taken a somewhat comparable approach by first defining and prohibiting the distribution of obscene material and then affording an express exception in cases of the “dissemination to institutions or individuals having scientific or special justification for possessing such material.” See Tentative Draft No. 6, supra, at pp. 3, 17; cf. Lockhart and McClure, supra, 45 Minn. L. Rev., at pp. 68, et seq. In United States v. 31 Photographs, etc., 156 F. Supp. 350 (D. C. S. D. N. Y. 1957), the Kinsey Institute sought to import hardcore pornography for scientific study. The court acknowledged that from the viewpoint of the “average person” (Roth v. United States, supra, 354 U. S., at p. 489, 77 S. Ct., at p. 1311, 1 L. Ed. 2d, at p. 1509) the material would be obscene. Nevertheless, it held that
It has been suggested that in order (within Roth) to reach its patently sound result, the court in United States v. 31 Photographs, etc., supra, 156 F. Supp. 350, was obliged to “write an exception into the obscenity statute that the legislature did not enact.” See Lockhart and McClure, supra, 45 Minn. L. Rev., at p. 76. Unlike most obscenity statutes, the New Jersey statute does embody a legislatively expressed exception. In the light of its contextual purpose and common understanding we consider the exception to be reasonably certain and fairly informative; it properly protects those who may possess and distribute obscene material in the course of bona fide scientific, medical or comparable research or study or in the course of law enforcement activities or in other like circumstances where the nature of the possession and distribution is not related to the appeal to prurient interest. We find the terms of the exception far less troublesome than the term “obscene” itself which the appellants now concede to be sufficiently definite, under the State as well as the Federal Constitution, and which was given outer limit meaning and validity in Roth where the Supreme Court pointed out that though the statutory term is not precise, the lack of precision itself is not constitutionally offensive; that the Constitution does not require impossible standards; that what is required is that the statutory language convey sufficient warning when measured by common understanding; and that although there may be marginal cases where it is difficult to determine the side of the line on which a particular situation falls, that is
Affirmed.
For affirmance — -Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman — 6.
For reversal — Hone.
Reference
- Full Case Name
- STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT v. HUDSON COUNTY NEWS COMPANY, A CORPORATION, DEFENDANT-APPELLANT STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT v. MILTON MEDWIN
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- 1 case
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