Summary
holding that the statutory citation required by Rule 3A:6 "is not mere surplusage but is inextricably included as a definitive part of the indictment"
Summary of this case from Barth v. CommonwealthOpinion
44718 Record No. 830605.
November 30, 1984.
Present: All the Justices.
Incorporation by reference of Newport News Code Section 27-3(a)(4) into obscenity indictments provided constitutional requisite of statement of scienter in indictment.
(1) Constitutional Law — Criminal Procedure — Obscenity — Scienter — No Obscenity Statute Can Withstand Constitutional Scrutiny Absent Scienter Requirement.
(2) Constitutional Law — Criminal Procedure — Obscenity — Scienter — Requirement Not Satisfied Unless Accused Acted With Knowledge of Contents and Character of Materials Distributed.
(3) Constitutional Law — Criminal Procedure — Obscenity — Scienter — Statutory Construction — Production, Publication, Sale, Possession, Etc. of Obscene Items (Code Sec. 18.2-374); Newport News Code Section 27-3(a)(4)) — Virginia Code and Newport News Code Provisions Comply With Constitutional Requirement of Scienter.
(4) Constitutional Law — Criminal Procedure — Indictments — All Essential Elements of an Offense Must be Precisely Stated in Indictment, Etc.
(5) Constitutional Law — Criminal Procedure — Indictments — Statutory Construction — Contents of Indictment in General (Code Sec. 19.2-220) — Requirements of Section Stated.
(6) Constitutional Law — Criminal Procedure — Indictments — Rules of Court — The Indictment and the Information, Contents [Rule 3A:7(a) (Now Rule 3A:6(a))] — Rule Contemplates Incorporation by Reference of Statute or Ordinance Upon Which Indictment Based.
(7) Constitutional Law — Criminal Procedure — Indictments — Obscenity — Rules of Court — The Indictment and the Information, Contents [Rule 3A:7(a) (Now Rule 3A:6(a))] — Indictments Incorporated by Reference to Newport News Code Section 27-33(a)(4), Citation of Ordinance Being Required by Rule 3A:7(a) [Now Rule 3A:6(a)].
(8) Constitutional Law — Criminal Procedure — Indictments — Obscenity — Indictments, Incorporating by Reference Provisions of Newport News Code Section 27-3(a)(4), Contained Required Statements of Scienter and There Could Be No Misunderstanding as to What Offenses Indictments Charged.
(9) Constitutional Law — Criminal Procedure — Indictments — Obscenity — Rules of Court — Definitions, Purpose and Interpretation [Rule 3A:2(a)]; The Indictment and the Information, Contents [Rule 3A:7(a) (Now Rule 3A:6(a))] — One Purpose of Part Three A of Rules is to Promote Uniformity and Simplicity in Procedure in Criminal Cases, Rule 3A:7(a) [Now Rule 3A:6(a)] Being Consistent With That Purpose and the Indictments Complying With Rule.
(10) Constitutional Law — Criminal Procedure — Indictments — Obscenity — Sufficiently Informed Defendant of Offense With Which It was Charged, Etc.
Wall Distributors was charged in 25 indictments with violating Newport News City Code Section 273(a)(4) for unlawfully having in its possession with intent to sell, lend, transport or distribute, an obscene magazine, the indictment referring specifically to the City Code Section and naming each magazine. The Trial Court overruled defendant's motion to dismiss the indictments on the ground they did not allege scienter, although the requirement was stated in the City Code Section to which the indictments referred. The Jury was also instructed that it must find defendant had knowledge of the contents of each magazine under consideration. Defendant was convicted on each indictment and argues on appeal that the Trial Court erred in overruling its motion to dismiss the indictments.
1. No statute regulating the distribution of obscenity materials can withstand constitutional scrutiny absent a scienter requirement.
2. The scienter element constitutionally required for an obscenity statute is not satisfied unless the accused acted with knowledge of the contents and character of the materials distributed.
3. Both Virginia Code Sec. 18.2-374(4) and Newport News Code Section 27-3(a)(4) comply with the constitutional requirement that the accused must have acted with knowledge of the content and character of the materials distributed.
4. All essential elements of an offense must be precisely stated in an indictment and evidence may not supply an essential element which is lacking, although the statement charging a statutory offense need not follow the identical words of the statute.
5. Code Sec. 19.2-220, which prescribes the contents of an indictment, requires a plain, concise and definite written statement of the offense charged but permits the indictment to describe the offense by using its common law name or by stating so much of the common law or statutory definition of the offense as will sufficiently advise what offense is charged.
6. Rule 3A:7(a) [Now Rule 3A:6(a)] tracks the language of Code Sec. 19.2-220 but also requires citation in the indictment of the statute or ordinance that defines the offense, incorporation by reference of a statute or ordinance being anticipated since error in the citation of the statute or ordinance is not ground for dismissal of the indictment unless the Court finds that the accused was thereby prejudiced in his defense.
7. The indictments incorporated by reference Newport News Code Section 27-3(a)(4) under which knowing possession with intent to sell an obscene item is the specified offense, the citation of the ordinance being required by Rule 3A:7(a) [Now Rule 3A:6(a)].
8. Since the indictments incorporated by reference Newport News Code Section 27-3(a)(4), the words of the indictments, "had in its possession . . . in violation" of the ordinance, necessarily meant knowingly had in its possession. There thus could be no misunderstanding as to what offenses the indictments charged. Washington v. Commonwealth, 216 Va. 185, 217 S.E.2d 815 (1975), followed; Wilder v. Commonwealth, 217 Va. 145, 225 S.E.2d 411 (1976), distinguished.
9. One of the express purposes of Part Three A of the Rules as stated in Rule 3A:2(a) is to promote uniformity and simplicity in procedure in criminal cases and Rule 3A:7(a) [Now Rule 3A:6(a)] is consistent with that purpose, the indictments in the present case complying with Rule 3A:7(a) [Now Rule 3A:6(a)].
10. Although it would have been better practice to have used the word "Knowingly" in the body of the indictments, the defendant was sufficiently informed of the offense with which it was charged and could fairly prepare its defense.
Appeal from a judgment of the Circuit Court of the City of Newport News. Hon. Fred W. Bateman, judge presiding.
Affirmed.
Bradley Jay Reich (Colo.) (Frederic L. Moschel; Arthur M. Schwartz (Colo.); Cumming and Patrick, on brief), for appellant.
Kris J. Sundberg, Assistant City Attorney (Robert v. Beale, City Attorney; William C. Johnson, Assistant City Attorney, on brief), for appellee.
The sole question presented in this appeal from 25 convictions under indictments charging violations of the Newport News obscenity ordinance is whether the indictments were fatally defective in that they failed to allege scienter.
Wall Distributors, Inc. (Wall), trading as the "Book Boutique," was charged with violating Section 27-3(a)(4) of the Newport News City Code which provides in pertinent part as follows:
It shall be unlawful for any person to knowingly: . . . [h]ave in such person's possession, with intent to sell, rent, lend, transport or distribute any obscene item.
On September 13, 1982, a grand jury returned a true bill on 25 indictments against Wall. Each indictment charged that Wall "unlawfully had in its possession with intent to sell, lend, transport or distribute, an obscene magazine," the name of which was stated in the indictment, in violation of Section 27-3(a)(4) of the Newport News City Code. At trial, Wall moved to dismiss the indictments for failure to allege knowledge or scienter, an essential element of the crimes charged. The court overruled Wall's motion and the trial proceeded on the indictments. The jury was instructed that to find Wall guilty it must find beyond a reasonable doubt that Wall knew or should have known the contents of each magazine were obscene. The jury found Wall guilty and fixed its punishment at a fine of $400 for each offense; the trial court entered a judgment on the verdicts. On appeal, Wall contends that the court erred in overruling its motion to dismiss the indictments.
[1-2] It has long been established that no statute regulating the distribution of obscene materials can withstand constitutional scrutiny absent a scienter requirement. Smith v. California, 361 U.S. 147, 152-54 (1959). This requirement is not satisfied unless the accused acted with knowledge of the content and character of the materials distributed. Hamling v. United States, 418 U.S. 87, 123 (1974).
Both the Virginia statute and the Newport News ordinance comply with the constitutional mandate. Code Sec. 18.2-374(4) makes it unlawful for any person "knowingly" to "[h]ave in his possession with intent to sell . . . any obscene item." Code Sec. 18.2-389 authorizes local governing bodies to adopt ordinances "paralleling" the state obscenity statutes. Section 27-3(a)(4) of the Newport News City Code, which tracks the language of Code Sec. 18.2-374(4), specifically applies only to persons who knowingly violate its terms. Thus, the ordinance expressly includes a scienter element in a Section 27-3(a)(4) violation. See Price v. Commonwealth, 213 Va. 113, 189 S.E.2d 324 (1972) (knowledge is an essential element of the crime defined by former Code Sec. 18.1-230, now Sec. 18.2-375), vacated and remanded, 413 U.S. 912, reh'g denied, 414 U.S. 881 (1973), aff'd on rehearing, 214 Va. 490, 201 S.E.2d 798 (1974).
We have held in the past that all essential elements of an offense must be precisely stated in the indictment; inference may not supply an essential element that is lacking. Evans v. Commonwealth, 183 Va. 775, 33 S.E.2d 636 (1945); see United States v. Debrow, 346 U.S. 374, 376 (1953). In Livingston v. Commonwealth, 184 Va. 830,36 S.E.2d 561 (1946), we held that in charging a statutory offense it is unnecessary to charge guilty knowledge unless scienter is part of the statutory definition of the offense. Id., at 840, 36 S.E.2d at 566. We also held that the statement charging a statutory offense need not follow the identical words of the statute. Id., at 839, 36 S.E.2d at 566.
[5-6] The contents of an indictment are now prescribed by Code Sec. 19.2-220 which requires that an indictment be a "plain, concise and definite written statement . . . describing the offense charged." This statute further provides that the indictment may describe the offense by using its common-law name or by stating so much of the common-law or statutory definition of the offense as is sufficient to "advise what offense is charged." Rule 3A:7(a) (renumbered and amended as Rule 3A:6(a), effective July 1, 1984) requires the indictment to cite "the statute or ordinance that defines the offense or, if there is no defining statute or ordinance, prescribes the punishment for the offense." Significantly, the rule further provides that error in the citation of the statute or ordinance or omission of the citation shall not be ground for dismissal of the indictment unless the court finds that the accused was thereby prejudiced in preparing his defense. The inference to be drawn from this provision is clear — incorporation by reference of a statute or ordinance is contemplated.
[7-9] Relying upon Wilder v. Commonwealth, 217 Va. 145, 225 S.E.2d 411 (1976), Wall contends that the 25 indictments charged no offense and were void. In Wilder, the indictment charged the defendant with "possession" of stolen credit cards and cited three statutes defining credit card theft. We held that the indictment failed to state an offense, was invalid, and, being void, could not be amended.
Wilder, however, is distinguishable from the present case. In Wilder, it was apparent that the Commonwealth intended to charge the defendant under a specific subsection of one of the statutes cited in the indictment. Examining that subsection, we ascertained that "possession" of stolen credit cards was not an offense within the meaning of the statutory language. "Possession," which was a word not found in the statute, was not synonymous with "taking," "obtaining," "withholding," or "receiving," as those words were used in the subsection. Id., at 147, 225 S.E.2d at 413. We also held that the references to the statutes failed to save the invalid indictment, as such references "support, but do not replace" the definite written statement required by Code Sec. 19.2-220 and Rule 3A:7(a) in the body of the indictment. Id., at 148, 225 S.E.2d at 413. Examination of the statutes cited in the Wilder indictment revealed that the statutes proscribed criminal conduct different in kind from that charged in the indictment. Examination of the ordinance cited in the 25 indictments now before us reveals that the ordinance proscribes criminal conduct of the kind charged in the indictments.
In the present case, the indictments charged Wall with possession with intent to sell obscene magazines in violation of the local ordinance. Following the procedure used in Wilder, we examine the ordinance and find that "knowingly" possessing with intent to sell an obscene item is the specified offense. There can be no misunderstanding as to what the indictments charged. Supported by the reference to the ordinance, the indictments satisfied the requirement of a definite written statement. The words of the indictments "had in its possession . . . In violation of" the ordinance necessarily meant "knowingly [had] in [its] possession . . . ," as the ordinance provided. Rule 3A:7(a) required that the indictments cite the ordinance that defines the offense. The citation required by Rule 3A:7(a) is not mere surplusage but is inextricably included as a definitive part of the indictments. One of the express purposes of Part Three A of the Rules is to promote "uniformity and simplicity in procedure" in criminal cases. Rule 3A:2. Rule 3A:7(a) is consistent with that purpose. The indictments in the present case complied with the rule. The written statements gave information as to what offense was being charged and incorporated by reference the complete definition contained in the ordinance.
In Washington v. Commonwealth, 216 Va. 185, 217 S.E.2d 815 (1975), the defendant was tried under an indictment charging him with felonious killing in violation of Code Sec. 53-291 and subsection 53-291(1) (now Sec. 18.2-31(c)). Defendant was a prison inmate; his victim was a guard. Appealing his conviction, defendant argued that the indictment was void because it failed to allege that he was an inmate, that the victim was a guard, and that the killing was malicious or intentional. Although we held that defendant had waived his right to challenge the indictment, we nevertheless held that the indictment was valid under Rule 3A:7(a). We held that defendant "knew, from the invocation of the statute and its subsection, that the essential elements of the case against him were his status as a prison inmate and [the victim's] status as a prison employee." Id., at 192, 217 S.E.2d at 822. Thus, in that case, incorporation by reference of the essential elements of the crime was sufficient to satisfy the requirement of a definite written statement describing the offense. See Howard v. Commonwealth, 221 Va. 904, 906, 275 S.E.2d 602, 603 (1981).
Wall knew from the invocation of the Newport News ordinance that one of the essential elements of the case against it was knowledge. Although it would have been better practice, of course, to have used the word "knowingly" in the body of the indictments, we conclude that the failure to do so did not invalidate the indictments. Wall was sufficiently informed of the offense with which it was charged so that it could fairly prepare its defense. Accordingly, we will affirm the judgment of the trial court.
Affirmed.