Sunderman v. State

Willoughby, J. This is a prosecution by affidavit charging the appellant with the crime of selling obscene literature. The affidavit was drawn to charge a violation of §2569 Burns 1926. The affidavit charged that *706 the appellant on April 4, 1924, at Huntington county, in the State of Indiana, did unlawfully sell to one Sophronia Wannas an obscene, lewd, lascivious and licentious publication in the form of a pamphlet, to wit, a pamphlet bearing the name and title of, “Hot Dog, The Regular Fellows Monthly, price two bits,” being then and there of the issue of the month of April 1924, Vol. 3, which printed matter of said pamphlet being then and there too lewd, lascivious and licentious to set out herein and to incumber the records of the court therewith. The appellant moved to quash the affidavit for the following reasons: (1) The facts stated in the affidavit do not constitute a public offense; (2) the facts stated in the affidavit do not state the offense with sufficient certainty. Appellant also filed a motion to require the state to indicate the matter in the publication which it was claimed was obscene, lascivious and licentious. These motions were overruled and the appellant was tried upon a plea of not guilty. The trial was by a jury, which returned a verdict finding appellant guilty as charged in the affidavit and fixing his punishment, that he be fined in the sum of ten dollars and the costs of the prosecution. A motion for a new trial was made and overruled and judgment was rendered on the verdict. From this judgment, appellant appeals and assigns^ as error that the court erred in overruling appellant’s motion to quash the affidavit and that the court erred in overruling appellant’s motion for a new trial. The motion of the appellant to require the state to indicate the matter alleged to be obscene raises no question. Hinshaw v. State (1919), 188 Ind. 447; Sherrick v. State (1906), 167 Ind. 345. *707 *706 This affidavit is filed under the provisions of §2569, supra. The affidavit is in the words of the statute and *707 the obscene matter was sufficiently described as an obscene, lewd, lascivious and licentious publication in the form of a pamphlet, to wit, a pamphlet bearing the name and title of “Hot Dog, The Regular Fellows Monthly, price two bits,” being then and there of the issue of the month of April 1924, Vol. 3, the printed matter of said pamphlet being then and there too lewd, lascivious and licentious to set out herein and to incumber the records of the court therewith. It has been held that in framing an indictment under statutes substantially the same as this one, it was sufficient to use the language of the statute, describing the offense and alleging in the affidavit that the obscene matter is too gross and obscene to be spread upon the records of the court. People v. Seltzer (1924), 203 N. Y. Supp. 809, 122 N. Y. Misc. 329. In People v. Girardin (1848), 1 Mich. 90, it was held, that in an indictment for publishing a bawdy and obscene paper, it is not necessary to set forth the obscene matter on which the people rely for a conviction. In Commonwealth v. Holmes (1821), 17 Mass. 336, it is held that in an indictment for publishing an obscene book or print, it is sufficient to give a general description thereof, and to aver evil tendency, without copying the book, or minutely describing the print. In Commonwealth v. Allison (1917), 227 Mass. 57, 116 N. E. 265, it is held that an indictment for distributing obscene pamphlets properly described the pamphlets by their titles accompanied by an allegation that they were too indecent to be spread upon the records, where the pamphlets were brief and their general character might be thought to be not inaptly indicated.by their titles. In People v. Kaufman (1897), 14 App. Div. (N. Y.) 305, 43 N. Y. Supp. 1046, it is held that the indictment need not set out the obscene matter and if it does not, *708 it must- state the matter is so gross as to be offensive to the court. In McNair v. People (1878), 89 Ill. 441, it is held that if the matter is too gross and obscene to be spread on the records of the court it should be averred as an excuse for failing to set out the obscene matter. The affidavit is sufficient to withstand the motion to quash. It is specified in the motion for a new trial that the verdict of the jury is contrary to law and the verdict of the jury is not sustained by sufficient evidence. The appellee contends that no question is presented on the action of the court in overruling the motion for a new trial because the bill of exceptions does not contain all the evidence given in the case. The appellant does not deny this assertion of the appellee. The appellant does not file any reply brief and an examination of the record shows that the appellee is correct in his claim that the record does not show that the bill of exceptions contains all the evidence given in the case. Ewbank’s Manual (2d ed.) §30a, says, if the exceptions relate to the evidence, it is necessary in almost every case that the judge’s certificate should state that the bill contains all the evidence given in the case. In McMurran v. Hannum (1916), 185 Ind. 326, 113 N. E. 238, it is held that the Supreme Court will not consider an assignment of error which requires a decision as to the.sufficiency of the evidence to sustain the verdict unless all the evidence is contained in the record. In Kleyla, ex rel., v. State (1887), 112 Ind. 146, 13 N. E. 255, and Brickley v. Weghorn (1880), 71 Ind. 497, it is held that testimony is not synonymous with evidence and a certificate that the bill of exceptions contains all the testimony in the case is not equivalent to saying it contains all the evidence in the case. See, also, §2332 Burns 1926, *709 We cannot consider the sufficiency of the evidence to sustain the verdict because there is no affirmative showing that the bill of exceptions contains all the evidence given in the case. Great Council, etc., Red Men v. Green (1913), 52 Ind. App. 198, 100 N. E. 472. No error being shown in the record, the 'judgment is affirmed.