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State v. Wein

Decided: July 19, 1979.


On certification to the Superior Court, Appellate Division, whose opinion is reported at 162 N.J. Super. 159 (1978).

For reversal and reinstatement -- Chief Justice Hughes and Justices Mountain, Pashman, Clifford, Schreiber and Handler. For affirmance -- None. The opinion of the court was delivered by Handler, J. Pashman, J., concurring. Pashman, J., concurring in the result.


The Court is called upon in this appeal to determine the sufficiency of an indictment charging the defendants Howard Wein and Philip Guarino, with the substantive crime of selling and distributing obscene motion picture films contrary to N.J.S.A. 2A:115-2 and with conspiracy to commit these criminal violations. The narrow issue presented is whether the count of the indictment charging defendants with the substantive crime under the obscenity statute is fatally defective for its failure to recite as an essential element of the offense scienter or knowledge of the nature of the materials.

It is not disputed that defendants have, for several years, operated an "adult book store" in Irvington. On March 4, 1976, they were indicted by an Essex County Grand Jury in a three-count indictment for criminal conduct arising out of the operation of their store. The first count of the indictment charged defendants with conspiracy in violation of N.J.S.A. 2A:98-1. It stated that between January 1 and September 30 of 1975 defendants:

Additionally, it set forth three overt acts committed in furtherance of the conspiracy. The second and third counts of the indictment charged the defendants with substantive offenses under the obscenity statute, N.J.S.A. 2A:115-2. The third count in particular charged that defendants "did unlawfully utter, sell, distribute and deliver" to two named individuals, both police officers, an obscene film entitled "The Golden Stream, Part Two" on or about September 24, 1975. This offense was identical in every detail to the criminal event narrated in the first count as the third overt act in furtherance of the criminal conspiracy.

Before trial, defendants moved to quash the indictment on numerous grounds, including its failure in the second and third counts to allege scienter. This motion was denied. The case proceeded to trial and both defendants were convicted by a jury on the first and third counts of the indictment. The defense moved for a judgment notwithstanding the verdict and for a new trial, based in part upon the deficiency of the indictment in its failure to specify criminal knowledge as an element essential to the commission of the substantive crime. These motions were also denied.

On appeal, the Appellate Division affirmed the conspiracy conviction but reversed the conviction for the actual sale of the obscene film. State v. Wein, 162 N.J. Super. 159 (1978). In reaching this result the court rejected as without merit all of the grounds, except one, urged by defendants for a reversal of their conviction for sale and distribution. The singular argument accepted by the appeals court was the failure of the indictment to charge that defendants acted with knowledge of the nature and character of the film alleged to have been sold. Id. at 165. We granted the State's petition for certification on this issue. 79 N.J. 464 (1978). We now reverse.

The standards for determining the sufficiency of an indictment are well-settled. The fundamental inquiry is whether the indictment substantially misleads or misinforms the accused as to the crime charged. The key is intelligibility. The indictment must charge the defendant with the commission of a crime in reasonably understandable language setting forth all of the critical facts and each of the essential elements which constitute the offense alleged. E.g., State v. Boratto, 80 N.J. 506 (1979); State v. Silverstein, 41 N.J. 203 (1963); State v. La Fera, 35 N.J. 75 (1961); State v. Low, 18 N.J. 179 (1955); State v. Malone, 13 N.J. Super. 510 (Law Div.), aff'd 16 N.J. Super. 383 (App. Div. 1951). Courts properly insist upon this level of communication in a criminal indictment. Clarity of expression in a formal charge of crime is an indispensable safeguard for the criminally accused. The objectives to be served by an indictment mandate the content. An indictment must adequately identify and explain the criminal offense to enable the accused to prepare a defense. State v. Boratto, supra; State v. La Fera; supra; State v. Borrell, 18 N.J. 16 (1955); State v. Lefante, 12 N.J. 505, 509-511 (1953). In addition, the language of the charge must be sufficiently detailed to avoid the risk of double jeopardy, successive prosecutions for the same transgression. And, it must be definite and precise enough to preclude the possibility of a substitution by the petit jury in the criminal trial of an offense different from the crime which the grand jury in fact considered and charged, State v. Boratto, supra; State v. La Fera, supra; State v. Spano, 128 N.J. Super. 90 (App. Div. 1973), aff'd 64 N.J. 566 (1974). See also State v. DiPaolo, 34 N.J. 279, 285, cert. den. 368 U.S. 880, 82 S. Ct. 130, 7 L. Ed. 2d 80 (1961); State v. Williamson, 54 N.J. Super. 170, 185-186 (App. Div.), aff'd 31 N.J. 16 (1959).

These criteria, as applied in this case, would require that the indictment inform defendants that the crimes with which they were charged, namely, conspiracy to violate and

actual violations of the obscenity statute, were perpetrated with criminal knowledge. The statute, N.J.S.A. 2A:115-2, provides simply that a person shall not utter, sell, or distribute obscene or indecent material "without just cause". It does not by its literal terms specify as an essential element a defendant's knowledge of the nature of the stuff purveyed. Nevertheless, the statute has been construed as containing such a requirement of scienter. E.g., State v. Hudson County News Co., 41 N.J. 247 (1963); State v. Hudson County News Co., 35 N.J. 284 (1961); State v. DePiano, 150 N.J. Super. 309 (App. Div. 1977). Criminal knowledge, however, need not be shown by proof of actual knowledge; circumstances putting an accused on notice or warranting his investigation of the material which he later distributed may be sufficient to impute criminal responsibility. State v. Hudson County News Co., supra, 41 N.J. 247; State v. DePiano, supra. The court below in this appeal quite correctly noted that "* * * a defendant cannot be held on a charge of selling obscene materials unless he is cognizant of the nature and character of the materials sold. If he has that knowledge, he would not also be required to know that the materials are as a matter of law obscene. Hamling v. United States, 418 U.S. 87, 123, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974) (other citations omitted)." 162 N.J. Super. at 164.

With respect to the conspiracy count, the Appellate Division held that the indictment adequately set forth the element of scienter in asserting a willful intent among the conspirators to sell the obscene films. We agree. The descriptive word "willfully" imports the notion of conduct which is purposeful and knowledgeable. See, e.g., State v. Winne, 12 N.J. 152, 175 (1953); State v. Williamson, supra. Cf. State v. D'Auria, 4 N.J. Super. 319 (App. Div. 1949); State v. John P. Callaghan Co., 70 N.J. Super. 585, 600 (Law Div. 1961). As stated by the ...

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