McNair v. People

Citations

• 89 Ill. 441

Syllabus

<p>1. Criminal law—indictment for printing, etc., of obscene pamphlet. An indictment framed under section 223 of the Criminal Code, for printing, having in possession and giving away an obscene and indecent pamphlet, must set out the supposed obscene matter, unless the publication is in the hands of the defendant, or out of the power of the prosecution, or the matter is too gross and obscene to be spread on the records of the court,—either of which facts, if existing, should be averred as an excuse for failing to set out the obscene matter.</p> <p>2. Whether matter published is obscene or not, is a question of law and not of fact, and that question is for the court to determine, and not the jury.</p> <p>3. Same—indictment as describing offense. The offense charged, whether in the language of the statute, or so as to be easily understood by the jury, should be so charged that the judgment can be pleaded in bar of another prosecution for the same offense. Counts for the printing, etc., of an obscene pamphlet, which may apply equally well to any number of pamphlets, and give no notice of any particular charge, can not be held sufficient under any construction of section 408 of the Criminal Code.</p> <p>4. Same—indictment generally. While mere technicalities should not be indulged to the obstruction of justice, the rules of law should not be so relaxed as that the accused may be unjustly and oppressively convicted. The constitution secures to him the right to be apprised of the nature and cause of the accusation.</p> <p>5. Same—when qui tam. Under our statute, if a qui tam proceeding is had, it must be by suit or information by some person who sues as well for the people as for himself. If the people proceed by indictment or information, as they may do, it is improper to make the proceeding qui tam, as the people are in such case entitled to the entire penalty.</p>