¶1concurring. I concur in the result which the majority has reached and generally endorsé its reasoning. I write separately merely to emphasize what I consider to be the principal consideration which compels that result.
¶2*502Today’s decision should not be read as holding that this Court will always employ a “totality of the facts and circumstances” approach when judging the sufficiency of any particular count in a multi-count indictment. As the majority emphasizes, in this ease the challenged substantive count charged the same illegal act which formed the basis of the conced'edly valid conspiracy count. As such, defendants were not prejudiced by the failure to particularize the scienter element of the substantive count. Nor can it seriously be urged that the grand jury did not pass upon the issue of scienter when handing down the indictment.
¶3This peculiar circumstance, however, will not he present in every, or even most, multi-count indictments. Given the minimal effort required to list every element of an offense in each count of a multi-count indictment, prosecutors would be well-advised to provide such detail in future indictments. In this way, no doubt will exist either as to a defendant’s notice of the charged offenses or whether the grand jury found probable cause as to each such offense.
¶4It should also he emphasized that the only issue before us in this appeal concerns the sufficiency of the substantive count of the indictment. We denied defendants’ petitions for certification challenging those portions of the Appellate Division’s judgment which upheld their convictions on constitutional grounds. Thus, this Court has expressed no opinion as to the validity of those convictions under the First Amendment or Article I, para. 6 of our own State Constitution. Nor have we approved the Appellate Division’s conclusion that the “free speech” guarantees of Article I, para. 6 are not more expansive than those contained in the federal constitution. Finally, we have not passed upon the Appellate Division’s ruling that the judicial definition of obscenity supplied by this Court in State v. DeSantis, 65 N. J. 462 (1974) in order to save N. J. S. A. 2A:115-1.1 et seq. from successful constitutional attack was meant to remain in effect indefinitely, rather than being intended only to apply for *503a reasonable period of time during which the Legislature itself would amend the obscenity statutes.
¶5To the extent that the majority’s opinion is consistent with the foregoing, I concur.
¶6P ashman, J., concurring in the result.
¶7For reversal and reinstatement — Chief Justice Hughes and Justices Mountain, Pashman, Clieeoed, Schkeibek and Handles — 6.
¶8For affirmance — Hone.