Smith v. State , 24 Tex. Ct. App. 1 ( 1887 )

Willson, Judge.

It is alleged in the indictment that the defendants “did unlawfully make and publish an indecent and obscene written composition, manifestly designed to corrupt the morals of youth,” and the written composition is then set forth in Iicbc verba. We think the indictment is sufficient, and that the exceptions thereto were properly overruled. It was unnecessary to allege the manner or means of making and publishing the composition, or the circumstances attending the making and publishing thereof. It was set forth in the indictment by its tenor, and it was thus made certain what composition it was that the defendants were charged with making and publishing. How .and where it was made and published were matters of proof and not of pleading. (The State v. Hanson, 23 Texas, 232.)

Exceptions were taken by defendants to the charge of the court, which are earnestly insisted upon in this court. Considering the charge as a whole, we are of the opinion that it is correct and sufficient. The composition being a written one, it was the province of the court to construe it and determine whether or not it was indecent and obscene. In construing it to be indecent and obscene, and in so instructing the jury, we think there was no error. The question as to whether or not it was manifestly designed by the defendants, in making and publishing said composition, to corrupt the morals of youth, was fairly and fully submitted to the jury. We do not agree to the proposition contended for by counsel for defendants, that the words, “manifestly designed to corrupt the morals of youth,” mean that the composition upon its face, and of itself, must manifestly be of a kind to produce that effect. We construe these words to refer to the intention— the purpose—of the defendants in making and publishing the composition. It must have been manifestly designed, that is, intended and purposed by them to corrupt the morals of youth, by making and publishing such composition. This was the view entertained by the trial judge, and fully explained to the jury in his charge.

We think the verdict of the jury is in accordance with the charge and the law, and is sustained by the evidence, and that there is no error in the conviction. The judgment is affirmed.

Affirmed.