
    Commonwealth ex rel. Rosintoski v. Myers
    
      
      Paul W. Reeder, District Attorney, for Commonwealth.
    
      James F. Cendoma, for defendant.
    February 11, 1960.
   Williams, P. J.,

— Jack R. Rosintoski has petitioned for a writ of habeas corpus, claiming that he is unlawfully detained in the Lycoming County jail. He was arrested by city police for possession of obscene literature and is in jail for lack of bail. He is charged under The Penal Code of June 24, 1939, P. L. 872, as amended by the Act of July 17,1957, P. L. 972, 18 PS §4524, which is to the effect that any person who sells, lends, distributes, exhibits, gives away or shows any obscene literature is guilty of a felony.

A search warrant was issued by the city police to search the room of a friend of Rosintoski. A brief case was found in the search which contained pictures of nude women as well as several books. We are of the opinion that these pictures are obscene even though some of our intellectuals may consider such art.

We are of the further opinion, however, that defendant did not violate the act. There was not sufficient material to show' that he was in the business of distributing obscene literature. From the testimony it appears that while he was at city hall answering another charge, he called his friend and told him to take custody of his case. The officers evidently overheard this conversation and for this reason a search warrant was issued. Mere possession of this type of material is not a violation.

And now, February 11, 1960, the warden of Lycoming County is directed to release Jack R. Rosintoski from the Lycoming County jail insofar as the warrant concerning his arrest for obscéne literature is concerned.  