Stroud v. State , 257 Ind. 204 ( 1971 )

Arterburn, C. J.

On August 21, 1969, appellant was charged by indictment with the offense of Sale of Obscene Literature. Appellant moved to quash the indictment, alleging “that the statute on which this action was based, Acts 1961, ch. 40, sec. 1, p. 70 (Burns 10-2803) is unconstitutionally vague and provides for constitutional censorship and invasion of privacy.” The trial court overruled the motion, whereupon, the appellant entered a plea of not guilty, waiving jury trial. On January 21,1970, the court found the appellant guilty and fined him one hundred dollars [$100.] and costs.

Appellant sets forth four propositions of alleged error, which in substance presents three issues for our consideration, they are as follows:

(1) Whether Burns Ind. Stat. Ann., sec. 10-2803, infra, which, inter alia, provides that it is a criminal offense to sell obscene literature, is unconstitutional on its face.

(2) Whether Burns Ind. Stat. Ann., sec. 10-2803, infra, is unconstitutional as applied to the facts of this case.

(3) Whether the evidence presented was sufficient to support the finding of appellant’s guilt beyond a reasonable doubt.

We will first consider appellant’s contention that Burns Ind. Stat. Ann., sec. 10-2803, is unconstitutional on its face. Appellant bases this contention on the premise that the statute; (1) is violative of his First Amendment rights of freedom of speech and press, and (2) fails to convey an adequate description of the evil intended to be prohibited so that a person of ordinary comprehension subject to the law can know what conduct on his part will render him liable to its penalties, and further in this regard, that it is so broad that it permits arbitrary prosecution under its proscription, in violation of the due process clause of the Fourteenth Amendment to the United States Constitution. With these contentions we cannot agree. First, as to appellant’s urging that Burns Ind. Stat. Ann., sec. 10-2803, infra, is violative of his First Amendment rights of freedom of speech and press, there is no merit to the contention, as obscenity has never been afforded the protection of the First Amendment. In Roth v. United States (1957), 354 U. S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498, the Supreme Court in unequivocal language stated, “We hold that obscenity is not within the area of constitutionally protected speech or press.” (354 U. S. at 485). In Campbell v. State (1971), 256 Ind. 630, 271 N. E. 2d 463, 465, regarding an individual’s First Amendment rights, we made this observation.

“The right) of free expression, guaranteed by the First Amendment to the Constitution of the United States, exists but as a unitary portion of a group of corollary rights each of which can only be exercised to the extent that such does not encroach upon or erode the others. The States, within the limitations imposed by the due process and equal protection requirements of the Fourteenth Amendment to the Constitution of the United States, may regulate and restrain the exercise of the freedom of expression, thereby insuring to all the freedom from the abuse exercise of the rights of others, including the right of free expression.”

In summary, Burns Ind. Stat. Ann., supra, does not violate appellant’s First Amendment Rights, in light of the fact that these rights are not absolute and the .State has a right to restrain and regulate the exercise of these rights, under its police power, to protect the public health, public morals, public order, public safety or public welfare. Homley v. State Dept. of Conservation et al. (1954), 234 Ind. 326, 123 N. E. 2d 452.

We will now consider appellant’s contention that Burns Ind. Stat. Ann., sec. 10-2803, is unconstitutional because it fails to convey a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. Burns Ind. Stat. Ann., sec. 10-2803 provides:

“10-2803. Obscene literature and devices — Circulation, possession, manufacture. — Whoever knowingly sells or lends, or offers to sell or lend, or gives way, or offers to give away, or in any manner exhibits or has in his possession, with or without intent to sell, lend or give away, any obscene, lewd, indecent or lascivious book, pamphlet, paper, drawing, lithograph, engraving, picture, daguerreotupe, photograph, stereoscopic picture, model, cast, instrument, or article of indecent or immoral use, or instrument or article for procuring abortion, or for self-pollution, or medicine for procuring abortion, or advertise the same, or any of them, for sale, or writes or prints any letter, circular, handbill, card, book, pamphlet, advertisement or notice of any kind, or gives information orally, stating when, how, where, or by what means, or of whom any of the obscene, lewd, indecent or lascivious articles or things, hereinbefore mentioned can be purchased, borrowed, presented or otherwise obtained, or are manufactured; or whoever knowingly manufactures, or draws and exposes, or draws with intent to sell or have sold, or prints any such articles or things, shall be fined not less than twenty dollars [$20.00] nor more than one thousand dollars [$1,000.00], to which may be added imprisonment for not less than twenty [20] days nor more than one [1] year; but nothing in this act shall be construed to affect teaching in regularly chartered medical colleges, or the publication of standard medical books, or the practice of regular practitioners of medicine or druggist in their legitimate business.” [Acts 1961, ch. 40, sec. 1 p. 70] (Emphasis added)

It is the emphasized portion of the Statute which the appellant urges fails to adequately convey a description of the evil intended to be prohibited. These words, obscene, lewd, indecent and lascivious, do adequately convey a description of the evil intended to be prohibited. Our opinion is supported by the United States Supreme Court’s decision in Roth v. United States (1957), 354 U. S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498, wherein, the Court made the following observation and statement regarding an allegation that the two statutes involved therein were unconstitutional because they failed to provide a “reasonably ascertainable standard of guilt.” The Roth decision clearly answers the question presented here.

“It is argued that the statutes do not provide reasonably ascertainable standards of guilt and therefore violate the constitutional requirements of due process. Winters v. New York, 333 U. S. 507, 92 L. Ed. 840, 68 S. Ct. 665. The federal obscenity statute makes punishable the mailing of material that is ‘obscene, lewd, lascivious, or filthy ... or other publication of an indecent character.’ The California statute makes punishable, inter alia, the keeping for sale or advertising material that is ‘obscene or indecent.’ The thrust of the argument is that these words are not sufficiently precise because they do not mean the same thing to all people, all the time, everywhere.” [354 U. S. 491] “Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ‘. . . [T]he Constitution does not require impossible standards’; all that is required is that the language ‘conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice . . .’ United States v. Petrillo, 332 U. S. 1, 7, 8, 91 L. Ed. 1877, 1883, 67 S. Ct. 1538. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark ‘. . . boundaries sufficiently distinct for judges and juries fairly to administer the law . . . That there may be marginal cases in which it is difficult to determine the side of the line on

*[354U. S.492]

*which a particular fact situation falls is no sufficient reason tq hold the language too ambiguous to define a criminal offense . . .’” [Emphasis added; 354 U. S. 491]

The following cases cite the above portion of the Roth decision as authority for the proposition. Reed Enterprises et al. v. Clark (1967), 278 F. Supp. 372 at 382; McGrew v. City of Jackson, Mississippi (1969), 307 F. Supp. 754 at 757; McAlpine v. Reese (1970), 309 F. Supp. 136 at 139; Hosey v. City of Jackson, Mississippi (1970), 309 F. Supp. 527 at 529; Karp v. Collins (1970), 310 F. Supp. 627 at 638; Miller v. United States (1970), 431 F. 2d 655 at 656.

We will next consider appellant’s contention that Burns Ind. Stat. Ann., sec. 10-2803, supra, is “unconstitutional as applied” to the facts of the instant case. At this point, having already determined that the statute is constitutional, the question raised by appellant’s contention that the statute is unconstitutional as applied, is now moot. In analysis, the only question which remains is whether the facts of the instant case are such as to fall within the ambit of a factual setting proscribed by the above statute, namely whether there was sufficient evidence of probative value from which the trier of the facts, in light of the standards laid down in Roth v. United States, supra, and other cases since decided involving the question of obscenity, could conclude that the appellant was guilty of the conduct proscribed by the statute. In every such case there is always the question of whether the appellant’s conduct is within the statutory regulation or proscription. Further, a determination that an appellant’s conduct is not within the regulation or proscription does not mean that the statute under which he was convicted is “unconstitutional,” it quite simply means there was insufficient evidence. For this reason we joint the appellant’s final contentions in one sufficiency question. In beginning, we point out that when determining whether a verdict is supported by sufficient evidence, this court must do so in light of the rule that, this court will not weigh the evidence nor resolve the questions of credibility, but will look to the evidence most favorable to the State and the reasonable inferences therefrom which support the verdict of the trial court or jury. Washington v. State (1971), 257 Ind. 40, 271 N. E. 2d 727; Davis v. State (1971), 256 Ind. 85, 267 N. E. 2d 63; Grimm v. State (1970), 254 Ind. 150, 258 N. E. 2d 407; Sharp v. State (1970) , 254 Ind. 435, 260 N. E. 2d 593; Smith v. State (1970), 254 Ind. 401, 260 N. E. 2d 558; and Langley v. State (1968), 250 Ind. 29, 232 N. E. 2d 611. A conviction must be affirmed, if having applied the rule, there is evidence of probative value, from which the trier of facts could reasonably infer that the appellant was guilty beyond a reasonable doubt. Gann v. State (1971), 256 Ind. 429, 269 N. E. 2d 381; Asher v. State (1969), 253 Ind. 25, 244 N. E. 2d 89.

Before looking to the evidence most favorable to the State, we point out that the essential elements of the offense of Selling Obscene Literature, as provided for in Burns Ind. Stat. Ann., supra are (1) a sale, (2) of obscene literature.

The State presented the following- evidence to prove the element of a “sale”, as required by the Statute. The State’s witness, Indianapolis Police Officer, Charles Broeking, gave the following testimony regarding the sale. Officer Broeking first told of his entering The Adult Bookstore, where the appellant was employed to censor and sell magazines and other articles. He further testified that he purchased a newspaper SCREW from the appellant for fifty cents. From Officer Broeking’s testimony there was clearly sufficient evidence to support the conclusion by the trial court that there was a sale. The only remaining and real question before us is whether the sale was of obscene literature. In considering this issue we must do so in light of the standards for judging obscenity espoused by the Supreme Court of the United States.

The question of whether obscenity was an utterance within the protection of free speech and press, guaranteed by the First Amendment to the Constitution of the United States, was first presented to the United States Supreme Court in Roth v. United States (1957), 354 U. S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304. In Roth the Court held that “In light of . . . history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.” [354 U. S. at 483]. Further, the Court held “. . . that obscenity is not within the area of constitutionally protected speech and press.” [354 U. S. at 485]. The Court then proceeded to approve the following standard for judging obscenity :

“Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” [354 U. S. at 489]

Five years later in Manual Enterprises, Inc., et al. v. Day (1962), 370 U. S. 478, 8 L. Ed. 2d 639, 82 S. Ct. 1432, the Court narrowed the broad standard set down in Roth and said regarding the material in question therein alleged to be obscene:

“. . . [W]e find lacking in these magazines an element which, no less than ‘prurient interest,’ is essential to a valid determination of obscenity . . . These magazines cannot be deemed so offensive on their face as to affront current community standards of decency — a quality that we shall hereafter refer to as ‘patent offensiveness’ or ‘indecency.’ Lacking that quality, the magazine cannot be deemed legally ‘obscene’, . . .” [370 U. S. at 482]

“The Court of Appeals was mistaken in considering that Roth made ‘prurient interest’ appeal the sole test of obscenity.” [370 U. S. at 486]

Thus, after the Manual Enterprises, Inc. v. Day, supra, material which appealed to the “prurient interest” alone was insufficient, it also had to be “patently offensive”, as to affront current community standards of decency. At this point it still was not clear what the court in Roth meant by “community standards” but the question was clearly resolved in Jacobellis v. Ohio (1964), 378 U. S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793, where the court stated:

“It has been suggested that the ‘contemporary community standards’ aspect of the Roth test implies a determination of the constitution question of obscenity in each case by the standards of the particular local community from which the case arises. This is an incorrect reading of Roth.” [378 U. S. at 192]

♦ * *

“We thus reaffirm the position taken in Roth to the effect that the constitutional status of an allegedly obscene work must be determined on the basis of a national standard.” [Emphasis added, 378 U. S. at 195].

In A Book named ‘John Cleland’s Memoirs of a Woman of Pleasure, et al. v. Attorney General of the Commonwealth of Massachusetts (1966), 383 U. S. 413, 16 L. Ed. 2d 1, 86 S. Ct. 975, the Court reformulated the Roth standard and actually added a third criteria, as seen in the following statement:

“We defined obscenity in Roth in the following terms: ‘[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.’ 354 U. S., at 489, 1 L. Ed. 2d at 1509. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.” [383 U. S. at 418].

The Court also made other important observations, which we note. First, the Court noted: “Each of the three federal constitutional criteria is to be applied independently; . . . ” [383 U. S. at 419]. Second, the Court held that “. . . the circumstances of production, sale, and publicity are relevant in determining whether or not the publication or distribution of the book is constitutionally protected.” [383 U. S. at 420] This latter point was a significant issue in two later cases, Redrup v. New York (1967), 386 U. S. 767, 18 L. Ed. 2d 515, 87 S. Ct. 1414, and Ginzburg et al. v. United States (1966), 383 U. S. 463, 16 L. Ed. 2d 31, 86 S. Ct. 942; see also, Ginsberg v. New York (1968), 290 U. S. 629, 20 L. Ed. 2d 195, 88 S. Ct. 1274, where the sale involved was to minors in violation of a New York statute. Also, closely related to this point, the Court in Mishkin v. New York (1966), 383 U. S. 502, 16 L. Ed. 2d 56, 86 S. Ct. 958 stated:

“We adjust the prurient-appeal requirement to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests of its intended and probable recipient group . . .” [383 U. S. at 509]

From the foregoing discussion, the standard for judging obscenity, as developed by the Supreme Court of the United States in Roth v. United States, supra, and subsequent decisions, is as follows:

(1) The dominant theme of the material taken as a whole appeals to a prurient interest in sex, assessing such in terms of the sexual interests of the intended and probable recipient group of the material;

(2) The material is patently offensive because it affronts contemporary community standards relating to the description or reproduction of sexual matters, in this regard the material must affront contemporary national standards rather than the standards of the particular community from which the case arose;

(3) The material is utterly without redeeming social value, that is, when taken as a whole, it has no literary, scientific, artistic or any other form of social importance.

The Supreme Court of the United States has never made a clear statement defining its use of the words “utterly without”. It is clear, however, that the mere presence of a minimum amount of socially redeeming substance cannot place otherwise obscene material within the protection of the First Amendment. One page of poetry of literary value or the Lords Prayer, placed in the midst of numerous pages of hard core pornography cannot render the entire publication non-obscene and bring it within the purview of constitutional protection, a contrary conclusion would render the proscription meaningless. Thus, “utterly without” redeeming social value must mean weighed as a whole, the material is of no social value.

Appellant urges that the decision of the United States Supreme Court in Stanley v. Georgia (1969), 394 U. S. 557, 22 L. Ed. 2d 542, 89 S. Ct. 1243, “leads to the conclusion that the mere distribution or showing of allegedly obscene materials without intent to distribute the material to minors or to distribute the material in such manner as to intrude upon the sensibilities or privacy of the general public, or, put another way, thrusting the materials off on unsuspecting individuals, is not constitutionally punishable.” In effect appellant is urging that Stanley substantially overruled Roth and other cases decided under it, in this, appellant is in error. The Supreme Court in Stanley v. Georgia, supra, held that “the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime.” [394 U. S. at 568]. However, the Court went on to say, “Roth and the cases following that decision are not impaired by today’s holding.” [394 U. S. at 568]. In United States v. Reidel (1971), 402 U. S. 351, 91 S. Ct. 1410, 28 L. Ed. 2d 813, the Supreme Court reversing the lower Court’s sustaining of the defendant’s motion to dismiss on the ground that Stanley constitutionally protected delivery of obscene material, made this significant observation:

“The District Court ignored both Roth and the express limitations on the reach of the Stanley decision. Relying on the statement in Stanley that ‘the Constitution protects the right to receive information and ideas . . . regardless of their social worth,’ 394 U. S., at 564, 22 L. Ed. 2d at 549, the trial judge reasoned that ‘if a person has the right to receive and possess this material, then someone must have the right to deliver it to him.’ He concluded that § 1461 could not be validly applied ‘where obscene material is not directed at children, or it is not directed at an unwilling public, where the material such as in this case is solicited by adults . .

“The District Court gave Stanley too wide a sweep. To extrapolate from Stanley’s right to have and peruse obscene material in the privacy of his own home a First Amendment right in Reidel to sell it to him would effectively scuttle Roth, the precise result that the Stanley opinion abjured. Whatever the scope of the ‘right to receive’ referred to in Stanley, it is not so broad as to immunize the dealings in obscenity in which Reidel engaged here — dealings which Roth held unprotected by the First Amendment.” [28 L. Ed. 2d at 817]

We find no merit to appellant’s urging that the Court's decision in Stanley v. Georgia, supra, affected the Roth decision and those cases since decided under it.

We will now turn to determine whether the material sold by the appellant in the instant case was obscene. To prove that the appellant had sold “obscene literature,” the State offered and the court admitted, the best evidence, that is, the material alleged to be obscene, a newspaper named SCREW.

It is impossible to completely describe in detail the full content of twenty-eight pages of the publication SCREW, herein alleged to be obscene. The publication contains some forty photographs of nude men and women, some of which completely expose the sex organs of each sex. One such photograph portrays two nude men. One man is standing, the other is sitting at his feet with his head between his legs. The genitals of each are fully exposed. The photograph appears as an illustration with an article concerning the liberation of homosexuals. There are numerous articles dealing with various topics all of which in some manner are tuned to the leer of the sensualist. An example is an article titled, “The Horny Armadildo.” The article discusses a device called a “Duo Stimular”. The device, made of rubber, is designed to be worn on the male genital, to multiply and intensify female excitement in sexual intercourse. The top one-half of this particular page, however, suggestively illustrates another use of the device. Shown is a lifesize photograph of two hands holding a partially peeled banana with attached “Duo Stimular” fit into position. There are also numerous advertisements for dildoes, films, photographs and other such similar paraphernalia. There are two pages of personal advertisements mostly soliciting partners for various sexual acts including intercourse and sodomy. We need not, for the purpose here, go further into the content of the publication, we only point out that the remainder of the content is of the same character as briefly illustrated above.

Appellant offered no specific evidence to prove that the newspaper SCREW, in issue here, was of any socially redeeming value, although, he was permitted to use “expert” witnesses in an attempt to establish that the publication was not obscene. We point out that such opinion testimony appears to be improper. The determination as to whether the publication was obscene was the ultimate fact in issue. Expert testimony is never proper when the expert is called to give an opinion as to the ultimate fact in issue, such is to be determined by the triers of the fact alone. Further, expert testimony is permitted when expertise or expert knowledge in a particular area is required because men of ordinary experience would be unable to understand or comprehend a particular matter. To permit experts to give their opinion as to whether material is obscene in a case of this sort is as clearly erroneous as permitting experts to give their opinions as to whether a defendant acted negligently in a negligence case. Hamrick v. State (1892), 134 Ind. 324, 34 N. E. 3; McCoy v. General Glass Corporation (1938), 106 Ind. App. 116, 17 N. E. 2d 473; and Briney v. Williams (1968), 143 Ind. App. 691, 242 N. E. 2d 132; see also 13 I.L.E. Evidence §§ 253 and 254.

In summary, the evidence is sufficient to sustain the appellant’s conviction and the trial court’s finding that, (1) the dominant theme of the newspaper SCREW, sold by appellant, taken as a whole appeals to a prurient interest in sex, assessing such in terms of the sexual interests of the intended and probable recipient group of the material; (2) the newspaper SCREW, sold by the appellant is patently offensive, because it affronts contemporary national standards relating to the description and reproduction of sexual matters; (3) the newspaper SCREW, sold by the appellant, is utterly without redeeming social value. We therefore, as did the trial court, hold that the newspaper SCREW, sold by appellant is obscene.

Judgment of the trial court is offirmed.

Prentice, Givan, JJ., concur, Hunter, J., concurs in result; DeBruler, J., dissents with opinion.