Ellenburg v. State

384 S.W.2d 29, 215 Tenn. 153, 19 McCanless 153, 1964 Tenn. LEXIS 547

• Court: Tennessee Supreme Court
• Decided: November 12, 1964
• Status: Published

Opinions

Mr. Justice Dyer

delivered the opinion of the Court.

The defendant-appellant, Guy Ellenburg, appeals from a conviction of possessing obscene literature in violation of Section 39-3001, T.C.A. The pertinent part of this statute- reads as follows:

“If any person print, publish, import, sell or distribute any book, pamphlet, ballad, printed paper or film containing obscene language or obscene prints, pictures, or descriptions, manifestly tending to corrupt the morals, or introduce the same into any family, school, or place of education, or have the same in his possession for the purpose of loan, sale, exhibition, or circulation, or with intent to introduce the same into any family, school, or place of education, he shall be guilty of a misdemeanor.” (39-3001)

Appellant, by proper assignment of error, insists this conviction cannot stand, since Section 39-3001, T.C.A. does not require scienter and is consequently unconstitutional. Appellant relies upon Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959).

The Smith v. California, supra, case involved an ordinance of the City of Los Angeles which had been construed by the California Courts as imposing strict liability for.the mere possession.of obscene matter, notwithstanding the lack of knowledge of the offender as to the contents thereof. The Supreme Court of the United States in striking down this ordinance said:

“But the question here is as to the validity of this ordinance’s elimination of the scienter, requirement— an elimination which may tend to work a substantial restriction on the freedom of speech and of the press. * * * 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 suspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. * * * It is plain to us that the ordinance in question, though aimed at obscene matter, has such a tendency to inhibit constitutionally protected expression that it cannot stand under the Constitution.” Smith v. California.

The application of Smith v. California, supra, to this case means Section 39-3001, T.C.A. must, either expressly or impliedly, require scienter or the statute is unconstitutional. It is apparent this statute does not expressly contain the required element of scienter, then if this statute is to be saved this element must be implied. Several states have implied scienter in their statutes as a result of Smith v. California, supra. See People v. Finkelstein, 9 N.Y.2d 342, 214 N.Y.S.2d 363, 174 N.E.2d 470 (1961); Cohen v. State, 125 So.2d 560 (Fla.1961); and State v. Jackson, 224 Or. 337, 356 P.2d 495 (1960). The statutes involved in these cases read much the same as Section 39-3001, T.C.A. Consequently these cases would be persuasive authority for implying scienter in our own statute. Nevertheless, the canons and rules of statutory construction in this State must be followed.

In the construction of this statute, to determine •whether scienter is implied or not, the first and primary object is to find the legislative intent. In so doing we look to the statute itself, as affording the best means of its exposition, giving the language its usual and ordinary meaning without any forced or subtle construction to extend their meaning. Phillips & Buttorff Mfg. Co. v. Carson, 188 Tenn. 132, 217 S.W.2d 1 (1948); State ex rel. Dossett v. Obion County, 188 Tenn. 538, 221 S.W.2d 705 (1949); Moto-Pep. Inc. v. McGoldrick, 202 Tenn. 119, 303 S.W.2d 326 (1956).

This statute is a prohibition against obscene materials manifestly tending to corrupt morals. In our examinations of this statute, for the purpose of determining if scienter, is implied, we have divided it into three parts.

Under the first part a person is guilty; if-he print, publish, import, sell or distribute any of the named materials containing- the prohibited obscenity. As an example, a person can be guilty, if he print a book, which contains prohibited obscene language. This part does not, expressly or impliedly, require the printer, used in the example, have knowledge the book contained this prohibited obscene language.

Under the second part a person is guilty if he introduces into any family, school or .place of education any of the named materials containing the prohibited obscenity. As an example a person can be guilty if he introduce into a school pictures containing the prohibited obscenity. This part does not, expressly or impliedly, require the person so introducing these pictures have knowledge they contain prohibited obscenity.

The third part of this statute deal§ with possession of the named materials containing the prohibited obscenity. Under this part a conviction can be had for possession, only if the State further show this possession was for the purpose of loan, sale, exhibition or circulation, or with intent to introduce the same into any family, school or place of education. As an example a- person can be guilty, if it be shown he had possession of a film containing prohibited obscenity and it being further shown he intended to introduce same into a family. This part does not require, either expressly or impliedly, the person, used in the example, have knowledge this film contained prohibited obscenity.

The State’s brief seeks to save this statute by applying the rule of construction that if a statute is susceptible of two constructions, one constitutional and one unconstitutional, the statute must be interpreted so as to sustain its validity. This is the rule in Tennessee. Cole Mfg. Co. v. Falls, 90 Tenn. 466, 16 S.W. 1045 (1891) and Illinois Cent. R. Co. v, Crider, 91 Tenn. 489, 19 S.W. 618 (1892) for representative cases.

The Court in the case of Exum v. Griffis Newbern Co., 144 Tenn. 239, 230 S.W. 601 (1921) said:

“ It is the duty of this court, where a statute is susceptible of two interpretations, one in harmony with, and the other in violation of, constitutional provisions, to give it that interpretation in harmony with the Constitution. But this principle does not' authorize the court to give to an act an interpretation merely to bring it within the constitutional limitation. Where the act is unambiguous and susceptible of only one interpretation, it must be given that construction, whatever the consequences may be when tested by the Constitution.” 144 Tenn. at 246-247, 230 S.W. at 603.

On the point at issue here we think this statute is not ambiguous and is susceptible of only one interpretation. The element of scienter is simply not in this statute, either expressly or impliedly.

It results Section 39-3001 T.C.A. is invalid under the holding of Smith v. California, supra. The judgment of the Trial Court is reversed and the cause dismissed;. -