
    Dan Udell Cloyd v. State of Tennessee
    
      (Knoxville,
    
    September Term, 1957.)
    Opinion filed December 6, 1957.
    
      Ralph. E. Vineyard, Knoxville, for plaintiff in error.
    '..ijj^MEs M. Glasgow, Assistant Attorney General, for tlie State.
   Me. Justice TomliNSON

delivered the opinion of the Court.

The appeal of Cloyd is from a conviction of violating T.C.A. see. 39-3001 reading as follows:

“39-3001. Obscene books, ballads or pictures — Misdemeanor. — If any person print, publish, import, sell or distribute any book, pamphlet, ballad, or printed paper 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.”

It was amended subsequent to the alleged commission of this offense by a 1957 Act, with which we are not here concerned.

A Captain in the Inspector General’s. Department of the United States Army saw some obscene pictures and vile printed matter in the possession of some person in his command. As a result, this Captain, whose name was Fuhr, went to a public place of business in Knoxville known as Lockett’s. He expressed a wish to buy some such pictures and literature. His testimony is that after some hesitation Cloyd, in charge of the store at the time, sold him six booklets containing pictures and printed matter, and for each of which six booklets he paid this clerk $2. The next day he took them to the Safety Director for Knoxville, turned them over to him and was reimbursed the $12 paid for them the day before. They are in evidence.

This Captain positively identifies plaintiff-in-error as the person who sold him these booklets. Cloyd denies this, and in support of that denial says that his hours on duty did not commence until 4:00 P.M. each day, whereas this Captain testified that he bought these booklets at 1:00 P.M. Cloyd says he was not there at 1:00 P.M. He is corroborated by this by his employer, Lockett. The bill of exceptions is in narrative form, and rather skimpy. But it is true that the foregoing sharply drawn issue of fact was decided by the jury in favor of the credibility of the Captain. Its finding on this score is final here.

One ground of the motion for a new trial is that “certain .evidence was improperly submitted to the jury”. Assignment of error No. 2, relying upon the foregoing ground of a motion for a new trial, is that the Trial Court erred in permitting introduction of certain evidence of a subsequent raid some weeks after the foregoing alleged sale.

We cannot consider this assignment of error because Rule 14(5), 185 Tenn. 868-869 provides that errors in the admission of testimony will not constitute a ground for reversal “unless it affirmatively appears that same was specifically stated in the motion made for a new trial in the lower court * * *.” The statement in the motion for a new trial that “certain evidence was improperly submitted to the jury” is not by any means a specific statement of the evidence objected to. Read Ferguson v. State, 166 Tenn. 308, 311, 61 S.W.2d 467.

Based on the fact that the testimony of Captain Fuhr is not corroborated by other testimony, it is insisted that the conviction is not supported by evidence.

This insistence overlooks the fact that plaintiff-in-error was violating the law independent of Captain Fuhr. He was possessing this obscene literature for the purpose of sale, exhibition, circulation, etc. Applicable here is the rule last repeated, perhaps, in Goins v. State, 192 Tenn. 32, 39, 237 S.W.2d 8, 12, as follows:

“The purpose of the detective or governmental agent is not to solicit the commission of, not to create, an offense, bnt to ascertain if the accused "is eií¿ in an unlawful business, or to entrap the aéfé¿ÍÍk,lÍt''M> the act of committing an offense which he has reasbii-1 able grounds to believe the accused has- ¡commenced, or is about to commence.” /•- .I

Another assignment of error is that1 •"Ti'C’.A. sdc1.1-39-3001 violates the 14th amendment to tlíe ifedefál Cóli1-’ stitution in that it is, so the brief says, “ a1 fiddle 'pocf^e5”* of an uncertainty. By way of argument',"théh,i‘theí"b,í,i‘ef' inquires: '

“Where are the lines drawn?” What 5s“‘ó'b'Sc'éne ? What must be proven to show thaWsbrnuthiAg,' if áiyi* thing, manifestly tends to cor,rñ]ií''intírálk?'‘'Wha:t ’iá1 moral and what is not moral ¡OTliei.oose'ly diSiWn'^ta't-d ute will not meet the requ'ir!árüé¿t'Si,df' sfa’tifto'ryi'ctih-''' struction let alone the constitutionality.'”’''

O 1 Í5 ) l 4 ” h>lil Ijill) *i That is a criticism directed, not to the constitutionality Cl mil ■u l mi ¡ni i <il In; IM.i of the code section, but to the question of whether.the runjHVii »> it T in j 11 >m facts established by evidence in a^iy.^iyepjCasq.fan withii^ the prohibitions of that code section.' But a complete answer to the question put as to wkát is ’obs'céne' 'df iVhkt manifestly tends to corrupt niorklsyoi-1 ’a's fcó-1 what1 •id1 moral or immoral appears in Abbot v. State 163 Tenn. 384, 386, 43 S.W.2d 211, where this Court, said in ,re-spouse to a similar problem that: ,, .. , *■ n\} ::.n 11 »>.! < > i > rdi/: imii.u

“The common sense of the comiaumy aS'Wielhas'tlwB sense of decency, propriety and midaálilty* jsi<sufficient! Cfd a>$ply those'-statutes to e.adh>ipair¡tieiflaif -ehse ¡'aindi point out what pedicular ■'tíondMt lb ¡rendered ctami®al!' by them.”

Plaintiff’s-in-error brief quotes from a 1957 decision of United States Supreme Court in Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 526, 1 L.Ed.2d 412, wherein that Court in allegedly 'striking- down a Michigan statute is quoted as saying this:

“We have Ipef,oretus.legislation, not, Reasonably restricted to the evil with which it is said to deal. The incidence i of :< this i emactmenti, sis ; to. \ reduce tthe adult population of Michigan to reading only what is fit for children. ’ ’ Kil .-■O t. .¡a

The Tennessee statute is not reasonably capable!/'in* the ojfihron 'of th'is1 Court, ■ to'1 'such' k1 bohstfuctioh: •The‘‘j)ii:iC pose1 of"ltfie"'Tefi1ííessee, Statute "is' tó p'feveh't a common nuisance, sucl^ pictures and publications ’ Aeíñg''exactly that. See 67 C.J.S. Obscenity sec. 17 p. 39. In so1 iiar'as' rwj<»[ I iví lo 1 <» »*i •> m i • j >» * » imj ul “ biuii . •. 111 < 11 r j ivi j .iliih'ir* .•'! this. Court is .aware there is nothing,in, the 14th amendment to th$, ¡Efeder&l sf&tq, legislatures from taking such action.

-‘Thyipilcthre's'iA"thelb,eo'ldét&'lfept f or¡ ¿ale,1 'etc.,' nnd' sold by' Óloyd"fó Captaihl'Euhr‘ were1 photo'graphs’ of' naked men and women engaged not only in acts of sexual intercourse, but engaged in various unnatural sexiiáí acts* too1 reprehensible to pul;pn^pfint.^The^wri^ngjn^thqse,book-lets was with reference to such acts and as vile as a . . dimii < niiT.iu i i ,<■.-aii >a 11 s s:, ;i depraved mind could coimire up. To say that a statute PU?kffli];ingutkR„PPSft9,s,8ips,,§qjp,.&i,?fribqti,on, fitfe,.Qf..sqch booklets isi.u1; statute .iiEir’wiolatioin..of..!any- constitutional amendment is to asseft thaiti-i'wJijchi,dfift§ (nQf .qpp.eql-ffq, Luo is.j i I j .i j i m u j> 1 Í j j í ! 111;> .mmimu'Chu íoiji diniiii ok-'Í’,1-/

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