
    People v. Danahy.
    
      (Supreme Court, General Term, Fifth Department.
    March, 1892.)
    1. Obscene Publications—Indictment.
    An indictment under Pen. Code, § 317, for selling obscene publications, which alleged that defendant “sold an obscene, lewd, lascivious, filthy, and indecent newspaper, * * * containing stories of an indecent and immoral character, having a tendency to degrade and corrupt the morals, ” was bad on demurrer, because it did not set out the contents of the paper to show that it was of the character alleged.
    2. Same—Newspapers.
    The provision of Pen. Code, § 317, that a person who sells any printed matter of an indecent character is guilty of misdemeanor, applies to sales of newspapers containing such matter.
    •3. Indictment—Reference to Averments in Other Counts.
    A count in an indictment may refer to allegations in other counts to avoid repetition. People v. Graves, 5 Parker, Grim. R. 134, followed.
    Cross-appeals from court of sessions, Monroe county.
    Maurice E. Danahy was indicted for publishing and selling obscene matter. A demurrer to the indictment was sustained as to several counts, and overruled as to the others, and defendant and the people bring cross-appeals.
    Affirmed.
    Argued before Dwight, P. J., and Mauomber and Lewis, JJ.
    
      Geo. A. Menton, for the People. /. Van Voorhis, for defendant.
   Dwight, P. J.

The indictment was under section 317 of the Penal Code, ■relating to obscene publications. It was in six counts, anS the defendant demurred to the indictment as a whole, and separately to each count, on the ground that the facts stated in the indictment, and in each count thereof, •do not constitute any crime. By the first count the grand jury of the county •of Monroe accuse the defendant “of the crime of selling an obscene newspaper, committed as follows: The said Maurice E. Danahy, at the city of Rochester, in the county of Monroe, on the 27th day of September, in the year 1890, willfully, unlawfully, and maliciously did sell to Abram Rosenberg, and to divers other persons whose names are to this grand jury unknown, an obscene, lewd, lascivious, filthy, and indecent newspaper, commonly called and known as the ‘ Sunday Star,’ which said newspaper and Sunday Star was Ho. 1 of volume 2 of said paper, bearing date BoehesLer, H. Y., September 28, 1890, then and there containing stories and articles of an indecent and immoral character, having a tendency to degrade and corrupt the morals of such persons into whose hands it might come, contrary to the form of the statute,” etc. The objection to this count that it does not set out the contents of the newspaper complained of, nor any portion of them, is, we think, well taken. It is a cardinal principle of pleading, in both civil and criminal actions, that the complaint (indictment) shall contain a statement, not merely of the charge sought to be established, but'of facts which, if taken to be true, support the charge. The pleading must show on its face—its truth being conceded—that the cause of action exists or the crime has been committed. It is not enough to allege a conclusion of fact,—the facts themselves must be alleged, from which the conclusion may be drawn; and, in a case like the present, it is not enough to characterize the publication complained of, but the contents of the publication must be set forth, in order that it may appear on the face of the pleading- that it is of the character charged.

The rule which has always held in actions of libel, either civil or criminal, is applicable to this case. A complaint or indictment which only charged that the written or printed matter complained of was libelous or defamatory would certainly be bad, not because of a failure to identify the matter, but because it did not appear on the face of the pleading that it was libelous or defamatory; and so the two classes of actions or prosecutions have always been classed together for the purposes of this rule; and it has been held, with great strictness, that in all actions, civil and criminal, in which the cause of action or offense consists in the publication of written or printed matter, the words complained of must be set out in the complaint or indictment. The cases of Bradlaugh v. The Queen, 3 Q. B. Div. 607; Com. v. Tarbox, 1 Cush. 66; U. S. v. Bennett, 16 Blatchf. 338; Com. v. Bejardin, 126 Mass. 47,—are a few of those industriously collected by the learned county judge, and of which synopses are given in his opinion. They are directly in point, and, in effect, base the rule on the reasons above considered, and not—as the court seems to have done in the case of People v. Hallenbeck, 52 How. Pr. 502—on the ground of the necessity of clearly identifying the publication complained of. Identification is, of course, a requirement of the pleading, but in that respect the count in question is not at fault. It describes the newspaper by its name, its volume, number, date, and place of publication. Moreover, in its allegation of the manner in which the crime was committed, it applies to the publication not only the term “obscene,” but all the other descriptive terms used by the statute, in the alternative, in defining the crime, viz., “lewd, lascivious, filthy, and indecent;” and, still further, it describes the newspaper as containing articles and stories of an indecent and immoral character. But, after all, these additions are only amplification of the charge, and not demonstration of its truth,—a conclusion of fact, and not the facts themselves, relied upon to establish the charge made against the defendant. Three other counts (the 2d, 3d, and 6tb, respectively) charge the defendant with having in possession, with intent to sell, offering for sale-, and publishing, the same newspaper, described as in the first count, and, like that count, setting out no portion of its contents. We think the four counts-so far mentioned are defective in the respect considered, and that the several demurrers thereto must be allowed.

On the other band, the fourth count completely avoids the objection which we have considered, and is liable to no other objection, so far as we observe. It is framed under the same subdivision of section 317 as the first count, but under another specification. The statute, as applicable to it, reads: “A person who sells * * * any * * * printed matter of an indecent character * * * is guilty of misdemeanor. ” This count, besides specifying the time when, place where, and person to whom the sale is charged to have been made, and a minute description—for the purpose of identification—of the newspaper in which it was printed, sets out in full the “printed matter of an indecent character” to which the charge relates. It is no objection to this count that the printed matter in question is shown to have been printed in a newspaper. It is still “printed matter,” and, if of an indecent character, is within the prohibition of the statute, as much as if printed in a broad-side or hand-bill. As pointed out by the learned county judge, the language of the specification in the statute is not, “or any other printed matter, ” etc. On the contrary, it is very plain that the language, “or any printed matter of an indecent character, ” is intended to be very general, and to include everything coming within the description, whether otherwise described in previous specifications or not.

The fifth count charges the defendant with having the same printed matter in possession with intent to sell, and it identifies and sets out the matter intended by a reference to the fourth count, which is thereby made a part of the fifth. This mode of pleading by reference to a former part of the same indictment, to obviate a useless repetition, is sustained by authority, and seems to be without substantial fault. People v. Graves, 5 Parker, Crim, R. 134. The demurrer as to the fourth and fifth counts was properly overruled, and the judgment should be in all respects affirmed. Judgment of the court of sessions of Monroe county affirmed, and case remitted to that court to proceed on the fourth and fifth counts of the indictment. All concur.  