CHAPTER 239 - OFFENSES AGAINST RELIGION, MORALITY AND DECENCY—OBSCENE LITERATURE

AN ACT AMENDING CHAPTER 153, REVISED CODE OF DELAWARE, RELATING TO OFFENSES AGAINST RELIGION, MORALITY AND DECENCY, BY ADDING NEW SECTIONS THERETO PROVIDING FOR THE REPRESSION OF TRAFFIC IN THE PRODUCTION, SALE OR DISTRIBUTION OF OBSCENE, LEWD AND LASCIVIOUS WRITINGS, DRAWINGS, PHOTOGRAPHS, FILMS AND PRINTED MATERIAL.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met:

Section 1. That Chapter 153, Revised Code of Delaware, relating to offenses against religion, morality and decency, be and the same is hereby amended by adding new sections thereto as follows:

5280 A. Sec. 32. Whoever sells, lends, distributes, exhibits, gives away or shows, or offers to sell, lend, distribute, exhibit, give away or show, or has in his possession with intent to sell, lend, distribute, exhibit, give away or show, or knowingly advertises in any manner whatsoever, any obscene, lewd, lascivious, filthy, indecent book, magazine, pamphlet, newspaper, story-paper, paper, writing, drawing, photograph, film, figure or image, or any written or printed matter of an indecent, obscene, lewd, lascivious, filthy nature, or any article or instrument of indecent or immoral use or purpose, or purporting to be for indecent or immoral use, or whoever designs, copies, draws, photographs, prints, shows, utters, publishes or in any manner manufactures, produces or prepares any obscene, lewd, lascivious, filthy or indecent book, magazine, pamphlet, newspaper, story-paper, paper, writing, drawing, photograph, film, figure or image, or any article or instrument of indecent or immoral use or purpose, or purporting to be for indecent or immoral use, or whoever writes, prints, publishes or utters or causes to be printed, published or uttered, any advertisement or notice of any kind giving information, directly or indirectly, stating or purporting to do so, where, how, of whom, or by what means any, or what purports to be any, obscene, lewd, lascivious, filthy or indecent book, magazine, pamphlet, newspaper, story-paper, paper, writing, drawing, photograph, film, figure or image, or any written or printed matter of an indecent, obscene, lewd, lascivious or filthy nature, or any article or instrument of indecent or immoral use or purpose, or purporting to be for indecent or immoral use, can be purchased, obtained or had, is guilty of a misdemeanor, and upon conviction shall be sentenced to pay a fine of not less than $250.00, nor more than $2,500.00, or imprisoned for a term of not less than thirty days, nor more than three years, or by both such fine and imprisonment.

5280 B. Sec. 33. For each subsequent conviction, the Court shall impose a term of not less than six months, nor more than five years, or a fine of not less than $500.00, nor more than $5,000.00, or by both such fine and imprisonment.

5280 C. Sec. 34. Prosecution for violation of any of the provisions of 5280 A. Sec. 32 shall be tried in the Courts of this State wherein misdemeanors are triable, and the Municipal Court of the City of Wilmington shall also have concurrent jurisdiction over all violations of said section occurring within the corporate limits of the City of Wilmington.

5280 D. Sec. 35. Any person or officer authorized to issue warrants in criminal cases, may, within the limits of his jurisdiction, issue his warrant for the search of any house, store, automobile, or place, to search for the following property or articles: books, magazines, pamphlets, newspapers, story-papers, papers, writings, drawings, photographs, films, figures or images, or any written or printed matter of an indecent, obscene, lewd, lascivious or filthy nature, or any article or instrument of indecent or immoral use or purpose, or purporting to be for indecent or immoral use.

5280 E. Sec. 36. The application or complaint, shall be in writing, and shall be signed by the complainant and verified by his oath or affirmation. It shall designate the house, store, automobile or place, to be searched, and the owner, or occupant thereof (if any), and shall describe the things or person sought, as particularly as may be; and shall substantially allege the offense committed by or in relation to such person or thing, or the cause for which said search is to be made, and that the complainant has probable cause to suspect, and does suspect that the same is concealed in the house, store, automobile or place designated.

5280 F. Sec. 37. The warrant may be directed to any proper officer for service; it shall recite the essential facts alleged in the complaint, and may be made returnable before the person issuing it, or any Court or Justice of the Peace. The warrant shall direct the person or thing searched for, if found, and the person in whose custody or possession the same may be found, to be dealt with according to law.

5280 G. Sec. 38. A search warrant issued pursuant to the provisions of this Act shall not authorize the person executing it to search any dwelling house in the night-time, unless the person issuing the warrant shall be satisfied that it is necessary in order to prevent the escape or removal of the person or thing to be searched for; and then the authority shall be expressly given in the warrant.

5280 H. Sec. 39. That nothing in this Act shall be construed as interfering with the rights, privileges, and duties of the medical profession in advising or publishing or illustrating the use of methods and instruments for any of their patients.

5280 I. Sec. 40. All Acts or parts of Acts inconsistent herewith are hereby repealed.

5280 J. Sec. 41. If any word, section, paragraph, clause, or sentence of this Act shall be declared invalid by any Court of competent jurisdiction, the remaining sections, paragraphs, clauses, and sentences shall in no wise be affected, the General Assembly hereby declaring that it is intended to enact the sections, paragraphs, clauses or sentences not affected by any Court ruling.

Approved May 21, 1941.