
    The People of the State of New York, Respondent, v. Edward McGuire, Appellant.
    Argued January 20, 1959;
    decided April 16, 1959.
    
      
      John W. Condon, Jr., and Grace Marie Ange for appellant.
    I. The facts set forth in the information do not state a crime. Accordingly, the court was without jurisdiction and the judgment of conviction is a nullity. II. Mere possession of the material is not a crime, unless coupled with the intent to sell, lend, etc., as stated in the statute. Nowhere in the information laid against appellant is this essential element alleged. (People v. Patrick, 175 Misc. 997; People v. Bertram, 302 N. Y. 526; People v. Belcher, 302 N. Y. 529; People v. Jacoby, 304 N. Y. 33; People v. Love, 306 N. Y. 18; People v. Zambounis, 251 N. Y. 94.)
    
      Carman F. Ball, District Attorney (Leonard F. Walentynowicz of counsel), for respondent.
    I. Appellant cannot raise any other errors upon argument except those stated in his affidavit of appeal. (People v. Prior, 4 N Y 2d 70.) II. Defendant was properly convicted on the evidence adduced at the trial. III. The facts set forth in the information do state a crime, and sufficiently apprised appellant of the charges against him. (People v. Belcher, 302 N. Y. 529; People v. Bertram, 302 N. Y. 526; People v. Schultz, 301 N. Y. 495; People v. Jacoby, 304 N. Y. 33; People v. Love, 306 N. Y. 18.)
   Dye, J.

The defendant-appellant appeals by permission of a Judge of this court from a judgment of conviction rendered in the City Court of Buffalo, following trial, without a jury, upon an information charging violation of subdivision 1 of section 1141 of the Penal Law (possession of obscene prints and articles). On appeal to the Supreme Court, Erie County, the judgment was affirmed.

The facts are undisputed. In a raid by Buffalo police officers certain pornographic pictures and printed material, concededly lewd and obscene, were found on the defendant’s person and in the bookstore operated by him at 83 West Chippewa Street. Two informations were lodged, both for acts violative of subdivision 1 of section 1141: (1) by John Ferenc, a citizen, for unlawfully selling obscene photographs and books which were described; and (2) by Police Officer Ball for unlawful possession. At the trial, the first charge (selling) was dismissed without prejudice for failure of the complainant to appear. We are not now concerned with it on this appeal.

Defendant went to trial on the second information which, insofar as pertinent, charged that defendant: ‘ ‘ did unlawfully and wilfully possess and have under his control a quantity of obscene, lewd, lascivious and indecent pictures and books,” (describing same).

At the opening of the trial, and again at the close of the People’s proof, defendant’s counsel moved to dismiss the information for failure to state a crime in that it omitted to state that the defendant possessed the contraband material ‘ ‘ with intent to sell ”, as required by subdivision 1 of section 1141 of the Penal Law. The People contend that such omission may be disregarded, since the proof adduced at the trial tended to establish that the possession was for the purpose of sale. This may not be done.

It is fundamental that an information must state the crime with which the defendant is charged and the particular facts constituting that crime (People v. Zambounis, 251 N. Y. 94; People v. Patrick, 175 Misc. 997). The degree of exactitude may well differ with the circumstances. For instance, when the information is used as a basis for obtaining a warrant for an arrest, mere hearsay unsupported by a sworn statement or an examination by the Justice is not enough (People v. Bertram, 302 N; Y. 526). On the other hand, when a valid arrest is made without a warrant, the information serves as a pleading for the trial and is sufficient in and of itself to establish prima facie each of the essential elements of the crime charged without the necessity of a further deposition to particularize the evidence relied on (People v. Belcher, 302 N. Y. 529); but this presupposes an information clearly setting out the elements of the crime charged for the very good reason that the defendant ‘ ‘ should be informed of the nature of the charge against him and of the act constituting it, not only to enable him to prepare for trial, but also to prevent him from again being tried for the same offense’” (People v. Schultz, 301 N. Y. 495, 497), which, in the broad sense, is to say that the crime charged should be stated with such accuracy that the defendant may know the offense which it is claimed he has committed (People v. Love, 306 N. Y. 18). Omission of a necessary statutory ingredient is quite another matter which is sharply illustrated by this very case. Here, the crime sought to be charged is defined in subdivision 1 of section 1141 of the Penal Law as possession “ with intent to sell”. By subdivision 4 of section 1141 possession of six or more identical articles or similar, coming within the provision of this section, is presumptive evidence of a violation of the section. While this may be a rule of evidence as to proof of intent whenever six or more articles are possessed, it cannot be read so as to cure an otherwise defective information, nor may such omission be supplied by simply charging unlawful possession in the information. Before possession becomes unlawful under the statute, either actually or presumptively, it must be with intent to do one of many enumerated things which, in the language of the statute, includes not only to sell”, but also “to lend, distribute, give away, show or transmute, or advertise in any manner ’ ’, etc.

People v. Paolillo (15 Misc 2d 1031, affd. 307 N. Y. 736) requires no different holding. Supplying an omission which in no way affects the obvious purport of the information is an entirely different situation from that where the omitted matter is essential to spell out the crime charged. The particular acts constituting a crime are more than a technicality. It is fundamental that a person accused of crime is not required to speculate as to what crime, if any, the information charges, for he is entitled to know in advance of trial what crime he is called upon to defend. WLen the information fails to state facts sufficient to constitute the crime charged, it is jurisdictionally defective and must be dismissed.

The judgment of conviction should be and hereby is reversed and the information is dismissed.

Burke, J. (dissenting).

The defendant who was represented by counsel was tried and convicted on an information charging that defendant 44 did unlaAvfully and wilfully possess and have under his control a quantity of obscene, lewd, lascivious and indecent pictures and books * * * All in violation of Sec. 1141 Subd 1 of Penal Law.”

The cited subdivision of the section of the statute, in its relevant parts, states that 44 A person who * * * has in his possession with intent to sell, lend, distribute, give away, show or transmute or advertise in any manner, * * * any obscene, lewd, lascivious, filthy, indecent * * * or disgusting book, magazine * * * is guilty of a misdemeanor ”.

The defendant although not disputing possession of a quantity of obscene pictures and boohs maintains that the failure of the information to allege, in terms, that intent described in the statute is a jurisdictional defect which renders the judgment of conviction a nullity.

It is true that under the section of the statute cited the possession of less than six books and pictures is not a violation of law unless such possession is coupled with an intent to sell, lend, distribute, give away, show or etc. There can be no doubt that it is the intent to do any one of the enumerated acts which makes the possession wrongful.

But 44 However awkwardly an information may be drawn, if it charges an offense knoAvn to the law and states acts done by the accused that constitute it, that avíII be sufficient ”. (People v. Love, 306 N. Y. 18, 23.)

Hence this information cannot be assailed as fatally defective because it does not, in terms, contain the words 4 4 Avith intent to sell,” etc. An information, as we have said, is not required to be drawn in accordance with a prescribed formula or in the exact words of a statute. (See People v. Jacoby, 304 N. Y. 33.) The purpose and function of an information is to identify the charge against the accused so that his conviction or acquittal may prevent a charge for a subsequent offense and also to notify him of the charge pending against him to the end that he prepare his defense (People v. Schultz, 301 N. Y. 495). It simply must inform the Magistrate that4 4 a person has been guilty of some designated crime ”. (Code Crim. Pro., § 145.) In other words the information must allege that a defendant has committed the acts under the circumstances defined by the statute. But the omission of the words “ with intent to sell,” etc., is not reversible error if the language used states the elements of the crime charged. It is apparent that in the case of this specific offense it is the unlawfulness of the possession which turns an otherwise lawful possession into a crime. Here mere possession is not alleged, but unlawful possession of a quantity of lewd pictures and booJcs.

In People v. Paolillo (15 Misc 2d 1031, affd. 307 N. Y. 736) we agreed that there was nothing sacrosanct about the particular words “with intent”. In that case we found that that element of the crime was sufficiently covered in the information by the words “ wrongfully ” and “ unlawfully ”.

There is nothing in the statutory definition of the crime charged against this defendant which indicates that such an expression as “ with intent ” is necessary to save the information. Whether the possession was lawful was a matter of defense. In Paolillo (supra) the defendant was presumed to know what kind of “taking” was larcenous, i.e., unlawful. Here the defendant may be presumed to know what kinds of possession of a quantity of obscene prints are unlawful.

In this ease the allegation of possession of a quantity of obscene pictures and books is not an allegation of a perfectly innocent act (Penal Law, § 1141, subd. 4). Surely, then, the alleg-ation that the possession of the quantity of obscene prints was unlawful indicates that the requisite criminal intent was present. Hence the term ‘ ‘ unlawful possession” considered with the incorporation of the specific section and subdivision of the. Penal Law was sufficient to apprise the defendant of the crime charged as well as the act constituting the crime. Indeed, it is extremely unlikely that any defendant concededly possessing a quantity of filthy pictures and books could read this information and not know the crime he is charged with having committed.

Therefore, since the information set forth all the elements necessary to constitute a violation of subdivision 1 of section 1141 of the Penal Law, viz., possession which was unlawful, it is jurisdietionally sufficient.

Accordingly the judgment of conviction should be affirmed.

Judges Desmond, Fuld, Froessel and Van Voorhis concur with Judge Dye ; Judge Burke dissents in an opinion in which Chief Judge Conway concurs.

Judgments reversed and information dismissed.  