Commonwealth v. GirardCommonwealth v. Girard
- Reporters:
- , ,
- Before:
- Spalding
The defendants were convicted for violations of
The relevant facts may be summarized from the report as follows. Magazine World and Literature, Inc. are two stores located in New Bedford selling a variety of magazines and other items. The defendant Saba owned and operated Magazine World, and employed the defendant Dupont as a sales clerk. The defendant Girard was the manager of Literature, Inc., in which the defendants St. James and Grenier were employees. The materials in question were on open racks toward the rear of the store, *34some thirty feet, or halfway back, from the store’s entrance. On May 7, 1968, the New Bedford police seized, pursuant to a search warrant, a quantity of books, magazines, and written materials, including the magazines “Esoteria” and “Shocker” from Literature, Inc. The defendant Girard was indicted for possession with intent to sell of obscene literature in violation of
The materials in question contain for the most part photographs of nude or semi-nude men and women engaged in a variety of activities. “Esoteria” contains photographs of partially clothed models beating, strangling and whipping persons of the opposite sex. Its emphasis is on sado-maso-chistic activities, and includes some ten pages of “personal ads” for similar activity. “Shocker” also concentrates on sexual violence. It includes photos of a semi-nude female *35covered with lacerations and abrasions. Some photographs suggest lesbian sexual play. “Ankh Life Symbol” contains several photographs of stationary male and female models with their genital regions exposed, interspersed with articles on the life style of a nudist commune, nude psychotherapy, the origin of the zodiac, and the Catholic view of the birth control pill. “Naked Comics” consists of an article relating to the development of comics in newspapers, and two photographic comic strip sequences in which male and female genitalia are exposed. “Adult Movies Illustrated” contains photographs of scantily clad female models, females being whipped, and lesbian sexual play.
The questions reported concern the validity of the court’s denial of a motion to suppress evidence, the admission in evidence of the material seized, and whether findings of guilty on all indictments were warranted. These questions raise issues concerning the validity of a search warrant, the sufficiency of the indictments and evidence, the obscenity vel non of the materials involved and the constitutionality of
1. Our decision in Commonwealth v. Palladino, ante, 28 disposes of the convictions under
2. With regard to the indictments brought under § 30, a different problem arises, namely, whether the Legislature may constitutionally exclude scienter as an element of a crime under § 30. That section provides that “(Tjn a prosecution under this section it shall not be necessary to prove that the defendant has read, or knows of the offensive description or picture contained in the literature involved.” *36The question raised thus differs from the issue presented in Demetropolos v. Commonwealth, 342 Mass. 658, and Commonwealth v. Corey, 351 Mass. 331, where the Legislature’s failure to specify whether or not scienter was an element of the offences created by §§ 28 and 28A permitted us to construe these statutes as including scienter in order to save their constitutionality. Here that cannot be done, for the Legislature has specifically excluded scienter as an element of the crime. The question whether the Legislature could constitutionally dispense with scienter as an element of an offence is governed by our decision in Commonwealth v. Corey, supra, at 334. As we stated there, “Absent the scienter requirement, booksellers, unable to familiarize themselves with all the material on their shelves, would tend to restrict sales to minors to the relatively few books of which they had some knowledge of the contents or character. The result would be an impediment to the sale to minors not only of unprotected matter but also of that which is constitutionally protected.” With § 30, the threat to First Amendment interests is even greater. The statute imposes absolute liability on the sale, rent, display for sale, loan, gift, or offer of sale of any “written material which contains in its text ... a fictional description or illustration of sadism, masochism, sexual perversion, bestiality or lust, or of the physical torture of human beings.” A father who gives his sixteen year old son a novel which, unknown to him, contains a description, however brief, of human torture would violate the statute. To avoid prosecutions, a bookseller would have to examine minutely every novel he displays for sale or sells to a child under eighteen. Such a restriction would obstruct the flow of clearly protected expression to children under eighteen, and is an impermissible exercise of the legislative power.
3. It follows that all of the convictions (those under
So ordered.
Notes
“Whoever . . . sells or distributes a pamphlet . . . printed paper, . . . or other thing which is obscene, indecent or impure, or an obscene, indecent or impure print, picture, figure, image or description ... or has in his possession any such pamphlet . . . printed paper . . . obscene, indecent or impure print, picture, figure, image or other thing, for the purpose of sale, exhibition, loan or circulation ....
“Whoever sells, rents, displays for sale, loans, gives or distributes to a child under eighteen years of age or offers for sale to such a child any pamphlet, magazine, comic book, picture, picture book ... or other printed or written material which contains in its text, title, illustrations, or accompanying advertisements, a fictional description or illustration of sadism, masochism, sexual perversion, bestiality or lust, or of the physical torture of human beings, shall be punished by imprisonment for not more than two years or by a fine of not less than one hundred nor more than one thousand dollars. In a prosecution under this section it shall not be necessary to prove that the defendant has read, or knows of the offensive description or picture contained in the literature involved” (emphasis supplied).
These questions were directed to whether the convictions on each indictment were warranted.