7 Mass. App. Ct. 849 | Mass. App. Ct. | 1979
1. Our examination of the publication whose dissemination resulted in the issuance of these complaints under G. L. c. 272, § 29, persuades us that the defendants failed to carry their burden of proving the publication a "book” within the meaning of G. L. c. 272, §§ 28C-31. Commonwealth v. Ferro, 372 Mass. 379, 384-385 (1977). The references in some of the reproduced letters from readers to previous publications of the same name and similar character, as well as the numerous invitations to readers to send in letters and photographs, inferably for reproduction in future issues, are evidence of "continuity with other publications of a similar format and content issued at periodic intervals.” Id. at 384. Such evidence in the' circumstances warrants characterizing the publication as a magazine rather than a book. See Commonwealth v. Zone Book, Inc., 372 Mass. 366, 371 (1977). Thus, insofar as the motions to dismiss the complaints were based on the absence of any in rem proceeding against the publication, the motions were properly denied. Commonwealth v. Ferro, supra at 381-382, 384-385. 2. We also think that the judge was right in rejecting the further ground advanced in the defendant Bono’s motion to dismiss: that the exemption from prosecution under § 29 of certain employees of motion picture theaters by G. L. c. 272, § 32, deprived Bono, an employee of a book store, of his constitutional right to equal protection of the laws. As pointed out in the Commonwealth’s brief, there are obvious differences between a book and a motion picture, in the manner in which the two are customarily offered to the public and in the ability of employees who offer them to determine their content beforehand. In view of those differences, we are not prepared to say that there can be no rational basis for the distinction drawn by the Legislature as to the criminal liability of the two classes of employees. Compare Commonwealth v. Ferro, 372 Mass. at 383. 3. Nor was there error in the judge’s actions concerning the issue of the continued corporate existence of the defendant Zone Book, Inc. (Zone), when the publication was sold in February, 1977. In that connection we assume with Zone that its failure to assert lack of corporate status in its pretrial motion to dismiss did not constitute a waiver of that claim by operation of the third paragraph of G. L. c. 277, § 47A, and that the issuance, a week before the trial in this case, of a decision by the Supreme Judicial Court in another obscenity prosecution against the same defendant (Commonwealth v. Zone Book, Inc., 372 Mass. 366 [1977]) did not amount to an adjudication of Zone’s corporate status at that time. The
Judgments affirmed.