Opinion
No. 37805
Decided May 29, 1963.
Criminal law — Exhibiting or permitting exhibition of obscene picture — Scienter not made element of offense — Section 2905.40, Revised Code, unconstitutional.
APPEAL from the Court of Appeals for Franklin County.
The defendant, appellant herein, was charged by affidavit with having violated Section 2905.40, Revised Code. The affidavit charges that defendant "did unlawfully own, operate, or permit another to operate on his premises, a picture machine or other device exhibiting lascivious, indecent, immoral or impure picture or a picture tending to corrupt morals * * * contrary to state statute 2905.40, Revised Code."
Section 2905.40, Revised Code, provides in part:
"No person shall give a public or private exhibition of a lascivious, indecent, immoral, or impure nature or an exhibition tending to corrupt morals, or own, operate, or permit another to operate on his premises * * * a picture machine or other device exhibiting a lascivious, indecent, immoral, or impure picture or figure or a picture of crime or lust, or a picture tending to corrupt morals."
At the trial, the defendant moved to dismiss on the ground that the statute is unconstitutional. The Columbus Municipal Court found defendant guilty as charged in the affidavit.
An appeal was taken to the Court of Common Pleas where the judgment of conviction was affirmed. Subsequently an appeal to the Court of Appeals resulted in an affirmance of the judgment of the Court of Common Pleas. In each appeal defendant renewed his attack on the constitutionality of the statute.
An appeal as of right and the allowance of a motion to certify the record bring the cause to this court for review.
Mr. Russell Leach, city attorney, and Mr. Bernard T. Chupka, for appellee.
Mr. George E. Tyack, for appellant.
Section 2905.40, Revised Code, purporting to impose an absolute criminal liability upon one who operates or permits another to operate on his premises a picture machine exhibiting proscribed pictures without reference to guilty knowledge ( scienter) or guilty purpose ( mens rea) on the part of the accused is unconstitutional. City of Cincinnati v. Marshall, 172 Ohio St. 280; Smith v. California, 361 U.S. 147; State v. Warth, 173 Ohio St. 15; State v. Jacobellis, 173 Ohio St. 22.
The judgment of the Court of Appeals is reversed.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.