Opinion
October 22, 1940.
November 13, 1940.
Criminal law — Sale of obscene literature — Trial — Charge — Illustration.
On appeal by defendant from conviction and sentence on an indictment charging him with wilfully selling and distributing obscene books, pamphlets, etc., it was held that the use by the trial judge of a certain illustration in his charge to the jury with respect to the probative value of testimony of defendant's witnesses that they had seen no such books, pamphlets, etc., around his premises, as over against the testimony of the Commonwealth's witnesses that they were present when defendant sold them, did not harm defendant and did not constitute reversible error.
Appeal, No. 139, April T., 1941, from judgment of Q.S. Cambria Co., June Sessions, 1940, No. 104, in case of Commonwealth v. John Kufel.
Before KELLER, P.J., CUNNINGHAM, BALDRIGE, STADTFELD, PARKER, RHODES and HIRT, JJ. Judgment affirmed.
Indictment charging defendant with wilfully selling and distributing obscene books, pamphlets, etc. Before GREER, J.
The facts are stated in the opinion of the Superior Court.
Verdict of guilty and judgment and sentence thereon. Defendant appealed.
Error assigned, among others, was refusal of new trial.
J.J. Kintner, for appellant.
Fred J. Fees, First Assistant District Attorney, with him Stephens Mayer, District Attorney, for appellee.
Argued October 22, 1940.
The defendant was indicted, tried and found guilty of wilfully selling, distributing, etc. certain obscene, lewd, lascivious, filthy, indecent and disgusting books, pamphlets, etc. (sec. 524 of Criminal Code of 1939, P.L. 872, pp. 912-913).
There was sufficient evidence, if believed by the jury, to sustain the verdict; and defendant's counsel admitted the obscene and indecent character of the books and pamphlets.
The only substantial question raised relates to the use by the court of an illustration in his charge to the jury, with respect to the probative value of testimony of defendant's witnesses that they had seen no such books, pamphlets, etc. around his premises, as over against the testimony of the Commonwealth's witnesses that they were present when defendant sold them. The Commonwealth's testimony did not attempt to establish that the books, etc. were lying about in profusion, so as to be generally observable.
While a less malodorous illustration might well have been employed, we are satisfied that in using it the trial judge intended no personal reference to the defendant. He expressly disclaims it. It probably came to his mind by reason of the mephitic character of the `literature'. We are of opinion that it did the defendant no harm.
Judgment affirmed, and it is ordered that the record be remitted to the court below and that the defendant appear in said court at such time as he may be there called and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed at the time the appeal in this case was made a supersedeas.