Court v. State

error, Court, Plaintiff Defendant error. State, Argued June No. State 36. March 1971. Decided (Also reported 475.) in 188 N. W. plaintiff For in error there a brief and oral was argument by Myse Appleton. Gordon argued by

For the in error defendant the cause was Eich, attorney F. general, William assistant with whom general. Warren, attorney Robert on the brief W. objection J. The defendant’s initial Heffernan, prior completion preliminary raised ex- again appeal: amination and raised on That complaint charge complaint did not crime because the publications allege did not that the considered a whole complaint allege were obscene and did not part pertinent element of scienter. The of the amended complaint charged defendant: feloniously intentionally “. . . did and have sell possession in to-wit: for sale his obscene or indecent pictures, publications (3) ‘Affair,’ three entitled ‘Lasses 688 ‘Cocktails’, (1) contrary 944.21 to Section

& Glasses’ and (a) Criminal Code.” of Wisconsin reading complaint that are from a We satisfied allegation magazines, considered when was that entirety, merely that and not their were obscene was printed pictures individual therein were obscene. necessary course, bf the crime is, Scienter a element materials, possession or sale for sale obscene alleged complaint. Smith v. it in the must be criminal 215, 4 L. (1959), 861 U. S. California (1960), 12 2d Ed. 2d State v. Chobot Wis. alleged. sufficiently N. W. 286. Scienter was knowledge of the nature Scienter is the awareness alleged the materials to be obscene. Stats., word, (3), 939.23 “intentional-

Sec. defines defined, ly.” so it that a “. . . must defendant As means knowledge necessary which are to have those facts phrase, . make his conduct criminal . . .” The “feloni- ously complaint, intentionally,” used under the allegation statutory definition, a sufficient constitutes complaint an element of was insuffi- not scienter. cient. ought

Additionally, the defendant that he not contends trial, court have been bound over since circuit probable prove the evidence insufficient cause. disagree. argued it evidence We While could be preliminary adduced at the examination insufficient prove charges against beyond the defendant a doubt, imposed proof reasonable this burden upon preliminary the state examination. State Marackowsky ex rel. v. Kerl 258 Wis. may 2d 668. A defendant be bound N. W. over for trial general jurisdiction when from the evi- hearing presented preliminary appears dence at probable a crime has been committed and that probably Woj- committed it. State ex rel. defendant has tycski Hanley (1945), v. 20 N. Wis. W. 954.18 sec. are Stats. 1967. We satisfied that preliminary evidence at adduced examination met required prove probable to standards cause. testimony magazines ques- There that was the three in purchased tion Seller,” were “The from Book which the operated. They stapled defendant owned and were shut placed display and were on section the store designated, purchase.” “You must facts These give rise inference defendant reasonable that aware of the books, was contents and the evidence magistrate was sufficient for the to have found that probable defend- there cause determine that was maga- particular ant aware of of these contents was supra. required by California, Smith zines as argues probable The also that not defendant cause was proved preliminary examination, because the state produce publica- failed to evidence that sufficient community violated of candor. We are tions standards perusal magazines satisfied that a the three suf- magistrate committing at the ficient for the to arrive inference that were obscene and materials not conformity community with The defendant standards. properly bound for trial. over court,

The defendant also contends that this as a mat- magazines law, question ter of should conclude that the descriptions upon are not obscene. The defendant relies publications contents of not found to be obscene throughout the United various courts States argues publications, therefore that those since defendant contends are offensive than more be- ones court, obscene, fore have not been held to be this should, law, a matter of reach this court as the same yard- conclusion in the instant case. We consider inappropriate precedential purposes for the stick same rely damages reason we refuse on awarded subsequent case. one in a case to be used standard subjective the sub- The of the material as well as nature requires jective respective conduct defendants analysis not in each case. do believe individual We courts, by finding particular obscene materials guidelines subjective deter- obscene, have set the for a most The mination that other materials are obscene. gleaned prior courts that can be from these cases objective legal attempted of an have set standards applied nature in each case. verbaliza- which must be alleged piece obscenity or the nature of an tion of the is, beauty, describing piece like mode product eye We are satisfied of the beholder. magazines any description are sub- of the litigation merely predilec- ject of reflect would this writing opin- judge and of the this the anathemas tions descriptions than the ion and would be no more accurate upon defendant in which the are contained the cases subjective description of to use the ob- relies. We refuse objective scenity prior in as an standard to de- cases The termine whether before us are obscene. the items opinion appraisal have a true even reader would this magazines only if we were to of the nature these appendix reports. them in extenso publish our quote obviously defend- refuse We we to do. This magazines description of involved brief for a ant’s appeal: in this publications question in the “The in instant case dis- during engaged nude female some occasions close models play in horse breasts with other female or male models. The instances, freely many pubic are revealed and in photographs, however,

hair the female In all a few can seen. but genitalia prominently displayed not point genitalia picture. male focal of the The are not generally although exposed models are nude or male seminude.” supplement description only by pointing

willWe this pictures that, in addition out described magazines defendant, the contain of fiction short articles emphasis upon in which the violence and death involving a series of incidents unconventional sexual relations culminating under threat death and shooting killing unwilling partner. They sex episodes recount ap- of sexual abuse and It murder. parently these the defendant articles asks that we consider, photographs, addition to the show redeeming overall magazines. social value of these applying We are that, satisfied what we understand applicable standards, be the say, court cannot magazines as a of law, matter are not obscene. Roth In v. United (1957), Sup. States U. S. Ct. 1 L. Ed. 2d Supreme the United States obscenity Court held that did fall within the first protection speech amendment press. freedom of capsulized The plurality test of Roth was in a opinion written Mr. Justice Memoirs Brennan Massachusetts 413, 418, 383 U. S. 16 L. 2d 1. Ed. Three elements were there held to be essential to find material obscene and therefore not within protections. the ambit of first amendment three elements there stated were: “(a) the dominant theme the material taken aas appeals prurient whole sex; (b) to a interest the ma- patently contempo- terial is offensive because affronts rary community relating description or standards representation is matters; (c) the sexual material utterly redeeming without social value.” Case, 484,

The Roth supra, page clearly stated ob- scenity protections was excluded from first amendment “utterly redeeming because it impor- without social tance” and not within the ambit the constitutional provisions “fashioned interchange to assure unfettered bringing political the ideas about of and social changes people.” desired the In Jacobellis v. Ohio (1964), 184, 378 U. 191, 1676, S. 12 L. Ed. Mr. 793, apparently altered in that Roth

2d the test was opinion the converse Justice BRENNAN’S states i.e., it is Roth matter is not obscene test, that a unless “ ‘utterly’ importance.” social without supra, interpreted Chobot, v. This court State calling application of the for the Wisconsin statute as ap- with Roth been cited Roth test. The has also test Tropic McCauley Cancer proval by v. court 545, (1963), 2d State 2d 121 N. W. Wis. 2d (1968), 39 2d 159 N. W. Voshart Wis. 2d 29. 183 N. v. Amato W. State Wis. and, obscenity; accept under that the Roth test of We law, test, the materials as a matter of say, we cannot are not obscene. argues de- that, other court

The defendant since also when those held not to be obscene have materials cisions case, greater “candor” than instant evince materials as a have a national standard those established cases that, examining descriptions law, after matter of in- cases, conclude that contained in those we must of a standard. are not national violative stant materials descriptions above, of al- stated we doubt that As reports leged pornography law can ade- contained in materials, quately nature of and we describe are declarative of that those cases refuse to conclude are an individual We that national satisfied standard. made finder of the facts— must be determination constitutionally judge bearing mind the or — guidelines approved Roth. The mere fact “contempo- are Roth test standards states Supreme Court rary” United States indicative or be an mores did not intend that there ossification present past should bind decisions Moreover, word, “community,” contemporary scene. interpretations. varying susceptible This Cancer, Tropic supra, Chobot, has declined supra, and community approve of a national the standards

693 suggested supra. Kois, Jacobellis, In State v. been ante, p. 467, 188 we 668, N. 2d of even date herewith W. “ again contemporary have stated that e use com- [w] Wisconsin,” munity prevalent in the state standards express our ascertainable doubts there that is therefore, reject, national the defendant’s standard. We acceptable in conclusion that what been found to be has using community other states other standards declara- jurisdiction applied tive to be standard if even we were able to determine exact nature of opin- descriptions appear from the material that pointed out, however, the trial ions. It should be that judge in case referred to a national the instant standard submitting jury. instructions While we his inappropriate, defendant find instruction such prejudiced no he evidence that conse- shown as quence instruction. Georgia upon Stanley v.

The defendant also relies Sup. 1243, 557, 22 L. 2d S. 89 Ed. U. Ct. proposition 542, is in some in- for the governmental that, control and if to be free stances right possess material, must there obscene there course, inapplicable right Stanley, it. be the to sell situation, Stanley also fact and it is clear to this impinge upon the of Roth. If did not standards decision remained, lingering any and there have doubts should dispelled none, they in United States v. Reidel were been (May 1971), 402 U. S. L. Ed. Stanley pointed Case, out which power regulate prohibit no that the state had held obscenity by possession of an individual the mere home, holdings of privacy own did not disturb the of his state, we cannot a matter Roth. are satisfied that We magazines law, were not obscene. that the This case question presented a factual to be resolved finder proper of fact under constitutional standards. question obscenity matter of non a factual vel by of under the

be resolved the trier fact constitutional “finding- guidelines adopted the Roth. In Chobot we of approach” applicable not-against-the-evidence Cancer, McCauley Tropic v. of In review. standard of supra, page 148, from the Chobot standard we retreated of review and stated: reading . . deem of the book constitute “. we weighty determination, and

the most factor in the do of the trial consider court, bound the decision ourselves reading of on his it.” based McCauley a dis- was made after This statement pointed of cussion authorities which out various puts “undesirability of a formula which the decision jury judge upon one a difficult is- one constitutional McCauley, beyond sue the reach of reconsideration.” page 148. hand, Tropic McCauley

On the other Cancer was proceeding not a criminal an in rem case but was Cancer, declaratory judgment Tropic book, argued was obscene. It could be the method adopted McCauley therefore, was, review intended type applicable only be of situation where the totality really publication of the evidence itself appraisal question where wholly interpretation, a matter of verbal a field in which appellate professes expertise. an definitive However, Voshart, page supra, in State v. foot- appearing note we alluded to standard review Roth v. United Justice Harlan dissent Mr. quoted Mr. States. Justice were with views Harlan’s approval apparent of this court: “ reviewing escape T do not think that can courts by saying responsibility facts, trier itbe judge, questioned a “obscene,” for, aor has labeled the matter as “obscenity” suppressed, if tois question particular work character whether really question of con- of fact but a involves not stitutional issue judgment and delicate of the most sensitive States, Roth v. id. dissenting, United Harlan, kind.’ J. page at 497.”

Thus, inter apparently we have followed the HARLAN pretation review, appellate standard of the standard of recently fully which been more and more stated Jacobellis, supra. Therein, Mr. Mr. Justice Brennan opinion in Mr. Justice Justice in an Brennan, Goldberg joined, question of ob whether the discussed scenity purely left therefore be factual and should that, a “whether as a trier of He concluded fact. particular necessarily implicates an a is work is obscene law,” and the issue of sue of constitutional stated obscenity by Court.” ultimately decided “this must be Jacobellis, page made no supra, have While we McCauley pronouncement question on since the this dicta, appears Tropic except by way it Case, Cancer of of reasoning Mr. Justice have of clear that we followed the reasoning Roth of Mr. in the dissent Harlan in Jacobellis. Justice Brennan viewpoint expressed plurality opinion au- has, however, by not been thored Mr. Justice Brennan critics, wheth- it is difficult to determine without its pronouncement mandate which er constitutional determining the fact- leaves no latitude the states finding obscenity question process is re- which an Jacobellis Mr. Justice dissent solved. While Harlan’S agrees of with the it clear he statement makes reviewing Supreme responsibility of United States impose Court, he would the same not clear that finding upon fact of constitutional a state standards appellate court. He states: obscenity I of more more see cases the con- “The these wide, permitting I States but

vinced not become scope field, federally unrestricted, while hold- this ing tight rein, the Federal Government with lies achieving promise best between the scenity free accommodation sensible public sought interest and be ob- served protection genuine rights laws .... (pp. 204) expression.”

In the same Mr. Chief and Mr. case Justice WARREN dissenting, accept Justice of the Roth rule Clark, Case, however, question stating, that on review the simply: only “. . . a consideration whether there is suffi- upon finding cient evidence in the record which a obscenity could be made. If there is no evidence in upon finding made, record a cannot be such could obvious- ly the material involved held . . But obscene. . a ‘no may satisfy

since a mere modicum of evidence standard, unwilling give important I evidence’ constitutional tection. am right expression pro- of free limited such protection However, society’s right to main- tain moral its fiber and the effective administration of justice require that Court not itself an establish censor, reading record, ultimate in each case the entire viewing material, making independent the accused judgment question de novo obscenity. on There- fore, finding once a been made below proper application under a ap- Roth I test, would ply requiring a ‘sufficient evidence’ standard review — something merely any something more than evidence but less than the [including ‘substantial evidence on the record allegedly obscene a whole.’ Cf. material] as Universal Corp. Camera Board, Labor v. Jacobellis, 340 U. S. 474.” supra, pages 202, 203.

We note also Judge the dissent of Mr. Chief Lumbard United A in States v. Motion Picture Film (2d 1968), Cir. 196, 404 203, 204, Fed. 2d wherein he stated: majority “But the away would take jury from the power pass on these too complicated difficult and questions by saying obscenity is ‘an issue of con- stitutional law’ rather than issue of respect fact with

697 finding jury’s ef- usual conclusive to which the has its juries simply are not to be fect. To me this trusted where a means disagree majority judges with them. findings nullifying majority “The in action goes beyond jury any case far decided here thus obscenity in the no area. cited I can find No case is Supreme ver- case where the Court aside the has set instructions, has, proper dict of a under present obscenity found three estab- elements as 476, by States, lished 354 U. S. 77 Ct. Roth v. United S. 1304, 378 U. S. There (1957) Ohio, 1 1498 Ed. 2d L. Jacobellis (1964). 12 2d 793 S. Ct. L. Ed. suspect judges any no are in bet- reason position pass judgment ter jurors. Compare than are on these matters Justice Brennan’s remarks Mr. Kingsley Brown, Books, Inc. v. U. S. S. 1325, 1331, opinion) (dissenting : L. Ed. 2d 1469 “ jury represents community ‘The a cross-section special reflecting aptitude and has a for the view of pro- average person. vides for Jury obscenity trial of therefore peculiarly competent application a of the standard judging which, by definition, obscenity calls its average appraisal according per- an son’s of material contemporary application community standards.’ very due considerable intellec- “With deference my colleagues, I tual submit that when it attainments question goes permissible beyond to a comes in of what arousing prurient sex, verdict of a interest jury of men far more twelve and women better and community accurate reflection standards and social jurors value. The are drawn from all walks of life and pretentious positions community qualify their less questions Judge put them to answer them Murphy sixties who cerebrate ciary.” judges circuit in their middle at least well as ivory judi- towers of the agree Judge

We with Mr. Chief dissent Lumbard’s adopt principle espoused. which he The determina- tion of matter to be factual resolved following finder of guidelines, fact constitutional sub- ject by appellate to review an de- seeks merely underpinning termine whether the evidence the verdict was the view of record whole. sufficient fully consequences possible

We the are aware of of leaving preserved by the cherished the freedoms first which, may amendment the on occa- hands improperly by swayed foreign be sions considerations concepts liberty. our hand, American On other political it conclude that and difficult artistic minimally by leaving freedoms even are threatened jury system. initial fact determination to our venerated True, great always possibility there is that works may art momentarily suppressed by or literature be fringe always We overzealous. will have with us society “Song our that would conclude that Solo- “Canterbury mon” or the Tales” is obscene. point out, however,

We should it been the has experience of court that is rare indeed this liberty speech jeopardized first amendment of free prosecution obscenity (unless adopt position we Douglas Justice Mr. Mr. Justice all Black expression equally absolutely are forms entitled protections). to first amendment this That also experience been Supreme in the United Court States is evidenced the statement of Mr. Justice Harlan concurring Ginsberg New York 890 U. S. 629, 707, Sup. Ct. 20 L. Ed. dissent- ing Circuit, in Interstate Inc. v. Dallas (1968), 390 U. S. 676, 707, L. Ed. 2d wherein said, he except instances, “In all say, rare I venture to free-speech stake, no given substantial interest at right of obscenity.” to control States We conclude free-speech protected will interest juries strictly courts enjoined state when are follow making the constitutional of Roth in standards initial determination of and when such findings appeal only are sustained on when there is

699 whole, evidence, a in view of the record as substantial ILHR Madden, R. Inc. conclusion. See T. to reach that Department 2d (1969), 43 169 N. W. Wis. concurring for opinion, Justice Robert W. Hansen’s Mr. also: of review. See a recent that discussion standard (1) (d), sec. 227.20 Stats. judge, a the been tried before

Where the matter has there full adherence record show that has been should findings sup- Roth made are standards and that ported by record as evidence view of the substantial ability whole. confidence While has its this jury been to review verdicts to insure that constitutionally found, apparent the standards that upon jury verdict must be in strict which the bases its guidelines, approved with constitutional conformance rely mandatory. proper If we are are instructions jury’s upon conclude that case, verdict in this we must jury proper and the verdict the instructions to were upon Defendant attacks was based sufficient evidence. grounds. jury on several instructions requested by An defendant was: instruction guilty of the offense . to find defendant “. . charged, nature obscene.” you find defendant knew that must material was and knew that of the material rejected The court instruction and advised the jury: selling may guilty “Before the found defendant having possession any or material for obscene sale prove, by you state must

the beyond tionally evidence which satisfies doubt, all reasonable the defendant inten- possession sold or had in for his obscene sale magazines . . .” . argues given per- Defendant the instruction as finding any amits without evidence defendant aware of the nature of the and that materials finding if the defend- could return satisfied that possessed obscene. ant sold or material discussing hearing preliminary pointed We out every necessary scienter element conviction possession for the material obscene sale such purpose material Mishkin v. New sale. In 502, 511, York U. S. Supreme

L. Ed. 2d the United Court said: States requires proof “The constitution to avoid scienter self-censorship pro- constitutionally the hazard compensate ambiguities tected material and to for the obscenity.” definition of inherent supreme necessary The court held it that the that was be defendant aware of nature of the material. Simi- larly, recognized necessity court this has of the supra. Chobot, element of v. awareness State The majority interpretation this that concludes jury place upon that a reasonable would this instruction word, “intentionally,” would be that used as therein with it the connotation carries that defendant be required knowledge necessary to have of those to facts interpretation make his conduct Such criminal. rea- sonable, particularly where, here, as there substantial by placing evidence that the defendant in an books only” stapling “adults section and the covers evinced knowledge of the nature of the contents. opinion,

The however, writer this believes that although, instruction was defective, facts, under the con- stituting word, The “intentionally,” error. harmless as used in the Code, Wisconsin Criminal defined in the (3), appear statutes. 939.23 Sec. Stats. It would that expected guess meaning should not be at judge’s of words at least instructions be given statutory benefit definition. Since we jury’s hold in supported this case that a by verdict if conclusive, evidence be sufficient should should error, mandatory be free the instructions questionable instructions. not tolerate that we should erroneous. requested instruction The was defendant’s required defendant knew show state is only need know Defendant the material obscene. (Mo. Sup. State Smith the nature of materials. denied, 393 U. S. Ct., 1967), 422 certiorari W. 2d S. People 176; v. Wil- 2d L. Ed. Rptr. App. Cal. liamson 207 Cal. of- judge properly refused the instruction The trial as fered the defendant. improperly

Defendant claims that also judge trial defined. The instructed: signifying “Obscenity also been defined as has impurity morality relation sexual form of has thoughts; tendency excite which has lustful and, also, a sub- been defined material which has deprave corrupt tendency or or stantial viewers its readers arousing inciting thoughts lust- lascivious ful desires.” position part The defendant takes charge improperly impression the the created that stan- exclusively Roth set forth in were not the ones dards upon jury which the could reach its decision and supplement jury the entitled in- was therefore the struction with own view of the constitutional stan- its agree. dards. We do not portion quoted the

The first the section of instruc- substantially a recital of definition tions is verbatim the obscenity approved part Roth. The second repetition obscenity ap- of the trial definition of court case, companion proved in Alberts v. Roth’s California (1957), U. S. 1 L. Ed. Although particular sentence, taken out of instructions, fully encompass context from the did not test, they all of the elements of Roth are forth set explicity jury instructions, elsewhere and the prejudiced

could not or defendant have been misled by single not fact referred to did sentence encompass all of the elements. argues judge also the trial mis- defendant

applied the Roth he because stated: test represents “Material or sex in various that describes literary or is not if or forms obscene social its values outweighs importance pects prurient as- or the offensive quality signifi- If it. material overbearing literary may cant value social or it merely be found to be obscene because com- offends munity appeals prurient or standards interests.” indulge argues Defendant that this invites balancing weighing procedure prohibited Roth or Memoirs, supra, and Memoirs. In pages Mr. speaking court, plurality Justice for the Brennan, stated: Supreme holding “The Judicial erred in that a Court ‘unqualifiedly book need not be before it can worthless proscribed A be deemed obscene.’ it book be cannot unless utterly redeeming is found to be without social value. though possess This is so even the book found to requisite prurient appeal patently and to be offensive. Each of the three federal constitutional criteria be is to applied independently; the social value of can the book weighed against neither be prurient nor canceled its appeal patent Hence, even offensiveness. on the view possessed Memoirs only below a modi- value, judgment cum its social must be reversed being interpretation founded on an erroneous of a federal

constitutional standard.” pointed It should be out that even that statement car- balancing ries with supreme court, it a element. The though criticizing court, the Massachusetts did not hold that a utterly be material must without value to found qualified type obscene. It value material must have to be social, saved. The value must be and must it redeeming. be These carry are implicit that the words They judgment. are of a value connotation fact finder’s balancing suggest The writer a interests. that words admits, opinion however, he not under- that does of this means, Supreme the Court United States stand what Roth transposition the particularly in view protected by the constitution (obscenity not conclusion (it is the Memoir conclusion value) it no because value). say it to any not if it has Suffice analysis attempted judge’s a trial instructions sensible the the Roth he We believe on standards. succeeded. based taken we are Moreover, satisfied the instructions jury the was be bound whole make clear that as plurality opinion of Roth the test as stated the Judge Memoirs, defining supra, page obscenity, In utterly stated, . must with- “. . the material Parnell jury redeeming We conclude that the out value.” social respect. properly instructed in was complains were the Defendant also instructions believing jury that the in error was misled into the upon possible applied focused the to be standard upon upon rather than literature minors effects judge average agree. person. not The trial We do average judging upon citi- that, effect stated community zen, “the consider whole”: old, women, young educat- “. . . men and religious irreligious, uneducated, ed, light age, culture, philoso- of all the differences of may phy and which or that exist them attitudes between them . . .” affect motivate .

He went on state: you any, effects, if “In this case are not to consider might the material is on children because statute have specifically protection directed children.” During jury’s request course of the deliberations whether, was made for further as to “we instructions should consider involved minors at all case in general.” judge by The trial answered an almost verba- repetition portion tim the of the first of above instruc- by saying and concluded tions that the not statute was keep directed to from the material children that the jury towas be concerned with a fair cross of section average person. common, the We that the are satisfied judge prejudicially trial did not the The misstate law. proper was instructed accordance with constitu- tional standards.

Additionally, defendant the that evidence was claims support Knowledge insufficient the verdict. of the magazines by three contents the was denied the de- fendant. The relied on circumstantial evidence to state prove requisite the awareness the contents magazines. selling personally defendant admitted magazines. magazines the three that He admitted being were marked with identification numbers before put shelves, by on or either himself his clerk. magazines placed He admitted that had been in a marked, pur- section “You store must 21 to chase,” magazines that because of nature they stapled prevent perusal. were shut to their casual magazines notation, Each carried the “Adults only.” varying The evidence herein could lead to factual inferences —either that was of the defendant aware magazines unaware, contents he but that was prudence in the procedures exercise of had these used segregate presents typical literature. This fact question that must be resolved the trier of fact. Im- plicit jury’s question credibility verdict is the be afforded to he defendant’s statement that was unaware of the contents. areWe satisfied there that was support jury’s finding sufficient evidence in this respect. argues

The defendant also there was evidence no magazines contemporary show the three offended only community pre of candor. The evidence standards maga sociologist, sented who stated comparable question available were three zines country. testimony did His across communities availability question reach the of whether mere community of conformance with stan determinative page pointed Amato, supra, In that 645, we out dards. publications presenta their introduction of the and upon jury a evidence which the tion to was sufficient conformity respect jury could reach a conclusion holding community The of that standards. rationale with (1968), 252 v. Childs Or. also in State was stated Oregon Supreme Court 104, 447 wherein Pac. stated: long juror’s experience passed “The time has when a happenings local and limited to the his

was community. with movies, attitudes constantly average juror in touch publications, exposed scene, to national national say that aver- ... To television and radio. cognizant contemporary age juror national of the deny present community and what it will tolerate is mass dissemination information.” English addition, professor Uni- at Lawrence In analytical versity, evaluation after five-element literary magazines, any that none them had testified however, express He declined, value. social concerning pictures opinion value of the that artistic magazines. appeared in the for are the evidence sufficient

We was satisfied magazines utterly were without to find that redeeming jury’s value. We conclude social supported by view of substantial evidence in verdict was doing In have record as so we the entire submitted. alleged by merely errors our review not confined appeal on but have examined defendant magazines the record as a and whole themselves required by

have determined all of the elements Roth test have been satisfied.

The defendant also the trial court abused claims by denying change its discretion a motion for a of venue. timely supported The motion was by made and ex- purported attempts tensive affidavits show that had been made a local influence service club to prosecution. initiation of the instant Included awas proposed Appleton city draft of a ordinance which was granting critical of the courts continuances pornography proposed cases. The ordinance stated judicial permitted “perversion such profit.” conduct for risque magazines The defendant testified that been had surreptitiously placed among stock, apparently his purpose “fixing” against him, that, a case attempting light while he door-to-door sales bulbs money purposes, raise for charitable doors were people slammed in buy face his who refused to from him, notoriety community because in re- his gard operation to the of his Also included bookstore. clippings, mostly were a papers, number from local presented points varying regard view to problems law enforcement. change

A motion for of venue directed to is the dis- court, cretion of the trial and the trial decision court’s will not be interfered with an unless abuse demon- strated. v. Clarke (1970), State 2d Wis. 355; (1969), N. W. 2d State Kramer 45 Wis. 2d 919; 171 N. State (1968), W. 2d v. Laabs 40 Wis. past, N. W. 2d 249. In we have relied extensively judgment judge, on of the trial whose daily familiarity community with the sentiment of the gives him a print- broader base for decision his than the appeal. record pointed out, ed before on us We have however, there not be should undue deference judge’s Clarke, supra; trial decision. State v. Ameri- Project on Minimum Standards can Bar Association Press, Free Justice, Relating Trial and to Fair Criminal Kramer, In State v. draft, pages Approved 120-128. trial supra, page 80, the test on review we stated discretion: court’s exercise of considered, gives properly elicited, “If the evidence cannot a fair trial reasonable likelihood that is

rise grant fail a had, an of discretion to abuse change of venue.” compels case While the evidence instant segments prejudice there conclusion that was some selling against community persons of the accused re- literature, the evidence warrant obscene does not determination that com- versal trial court’s give prejudice munity infected with as to not so trial could to the reasonable likelihood that a fair rise deny It of discretion to had. abuse not be motion. defendant’s

The he have been defendant also should claims made permitted by jury. The defendant to waive trial timely jury trial and have the case motion to waive a however, attorney, tried to the court. district re- to consent to the waiver. fused 1967, permits (1), a defendant Sec. 957.01 Stats. right open ato trial court waive his statement writing, provided approves the trial or in attorney district consents. Defendant discard asks us requirement attorney’s district consent ob complexity scenity the issues. It because cases legislative requirement say that sufficient enactment, with federal con which is consistent Patton v. United States requirement. stitutional 854; ex State 74 L. Ed. S. U. Attorney County District v. Gollmar Sauk (1966), rel. juryA 406, 145 2d trial 2d N. W. cannot Wis. government of waived without consent counsel. be jury We conclude that the case submitted to the proper on constitutional the evidence standards whole, of record, when the record a is considered is jury’s sufficient for this court verdict to sustain guilty beyond that the a defendant was reasonable doubt. By Judgment affirmed. Court. — (concurring). C. J. concur the result Hallows, I arguments but not majority in all the made disagree sustain I its decision. with the view that this any accurately court or cannot describe obscene court interjecting subjective material without Ob- its views. scenity, beauty, and other can abstractions be measured by objective objective may standards. An standard private opinion of consensus ideas but never- objective then and can theless be so described. I majority implying think the confused because person personal what opinion may is obscene to one in his person not be to obscenity another can be described objectively by person. attempts either The Roth test lay objective down standard for and com- experience mon objectivity mankind testifies standards. But finding sometimes affirms jury objective of a on an admitting while standard on subjective findings. it would make basis My objection majority phrasing second scope appellate review. seems This be a battle any appellate words because under test review the present constitutionally material case is obscene. majority from retreated the standards of review adopted McCauley Tropic Cancer 20 Wis. doing 121 N. emphasizes W. 2d and in so importance appropriateness and the finding by of fact jury. finding jury Fact system under our jurisprudence regardless is the same scope of re view. The proper finds the facts under instructions jury applies In the applicable reality, law. of what is the negligence, fact, deals with the law the the whether law to majority to the stan- back obscenity. The comes libel, or jury Tropic the view that Cancer and prior dard to of obscenity as decide on law can properly the instructed separate reviewing I in a court. dissented the well as dissent opinion in Mr. Justice and concurred Brown’s Tropic scope adoption of review of new the of proposition that in constitu- Case and from the Cancer independently make appellate court can tional cases any course, under finding Of fact. of a constitutional able scope review, appellate court in Wisconsin is of ground finding lack of evi- jury on to set aside a ground pas- and on the the verdict dence to sustain prejudice. and sion however, not, to State majority returned

The 286, for 106 N. W. (1960), 12 2dWis. Chobot statutory imports scope standard of review but its might favor- be less law which from the administrative argues majority jury. integrity The able to review, namely, evidence, scope of substantial gives jury verdict whole the entire record as a view of appel- probings from stability more immunizes However, the usual of Chobot and the test courts. late required to be scope a verdict verdicts of review any evidence to sustain credible if there was sustained meet meant sufficient “to sustain” verdict and requires, proof type of case which that burden weight greater of the evidence in most cases certainty. In other cases convince to a reasonable clear, con- quality quantum of evidence had difference, satisfactory. I much vincing do not see of the entire evidence view any, if between substantial weight greater of the evidence a whole and record as point certainty. I The make convince to reasonable scope appellate have one of re- court should types view for all different eases invent should practices appellate types for different dif- cases. proof sufficiently ferent at burdens of level is trial differentiating.

My opinion majority last concern with is whether scope going very of The review is to be effective. change scope premises in the of based on the review is adoption Tropic Cancer, that at the time of in its of required by majority supreme standard not of the only suggested by This, court but Justice Harlan. Mr. date, doubt, no was true at late at time. But this grave I have court can avoid doubts this "an excursion finding obscenity.” into fact in the area of constitutional pronouncement opinion The in latest area this Mr. Justice Rosenbloom v. Metromedia Brennan 53, (1971), 29, 91 403 U. S. 29 L. Ed. he where states: particularized from “Aside considerations, these we recognized repeatedly may have courts avoid not an factfinding into simply excursion is area this because consuming Pennekamp time or difficult. stated We Florida, 328 U. 335 S. that: “ imposed upon ‘The Constitution this Court final authority meaning application determine the those require interpreta- words that instrument which judicial tion to resolve responsibility, issues. With that compelled we are examine for ourselves statements in issue and they under circumstances which were they made to see whether . . . are of a character principles which Amendment, adopted First as by the Due Clause of Amendment, Process Fourteenth protect.’ (Footnote omitted.) “Clearly, then, ‘obligation this Court has an to test chal- lenged judgments against guarantees of the First Amendments,’ doing Fourteenth and in ‘this so Court making independent avoid cannot judg- an constitutional ment on the facts of the Ohio, case.’ Jacobellis v. 378 (1964). U. Amendment simple S. 190 fact is that First questions compel ‘constitutional fact’ this de novo Court’s See review. Edwards v. Carolina, South Alabama, (1963); Blackburn v. 229, U. S. (1960).” 199, 205, 5n. U. S. review, scope personally favor a narrower IWhile indicated, I am Cancer my dissents Tronic of Supreme Court the United States not now sure agrees that view. with The determination (concurring). Wilkie, J". publication mixed particular obscene is

whether ap- on law question and constitutional of fact independent obliged determi- pellate to make an responsibility escape here. In We cannot this nation. Tropic state, principle announced in this this concept of recently Cancer.1 We adhered to this most years, appellate scope our Amato.2 In recent review in Supreme United Court has observed same States cases; e.g., principle v. Ohio.3 In in Jacobellis numerous Supreme Jacobellis United Court stated: States a whether “. . are told that the determination . We book, expres- particular picture, motion or other work of purely judg- factual can a sion is obscene be treated as conclusive, jury’s ment a verdict all but on which is essentially any to event left that the decision can be exercising courts, federal court and lower with this state only whether the to determine a limited review needed such as that ruling supported by evi- below ‘sufficient is suggestion appealing, lift dence.’ The is it would since difficult, unpleasant recurring, from our and shoulders only accept it task. But we cannot it. . . . Since is ‘obscenity’ pro- is excluded from the constitutional question tection, particular whether a work is obscene necessarily implicates an . . of constitutional law. . issue 1McCauley Tropic (1963), 134, 148, Cancer 20 Wis. 2d 121 (1966), 2d See also: N. W. 545. Annot. 5 3d 1158. A. L. R. 2 (1971), 641, 638, v. Amato 49 State Wis. 183 N. W. 2d 3 Sup. (1964), 84 12 378 U. S. Ct. Ed. 2d 793. See L. Redrup v. New York also: 386 S.U. 87 following Bedrup. 1414, 18 and cases L. Ed. 2d issue, think, ultimately Such we must he decided this court. ...” independent court, obliged then, to make an This is magazines proper test evaluation in terms of the these making they as to whether are In deter- obscene. mination, majority state) proper apply (as test prescribed by test, which is Roth-Memoirs. This requires recently by Amato, followed most this court periodical present three is deemed elements be before repeated many obscene. have been times These elements and these elements are: (a) “. . . theme material taken dominant appeals prurient sex; (b) a whole to a interest as patently material offensive con because affronts is relating descrip

temporary community standards representation matters; (c) tion or sexual utterly redeeming material value.” without social Supreme The United States Court has it clear made (c) connection with whether the mat- test is “utterly redeeming value,” ter is without social concept balancing This, too, is erroneous. made clear in Jacobellis.6 judging

In publication, of a the United Supreme Court has States declared that the standard to applied single community.7 national amendment under the first Federal Constitution is by every bound federal involved. This constitu- provision applicable, here, tional when states. obliged apply areWe therefore federal standards on Ohio, supra, 3, pages 187, Jacobellis v. footnote at 188. 5 (1966), 413, Memoirs 418, v. Massachusetts 383 U. S. 86 975, Sup. 1; (1957), Ct. 16 2d Roth L. Ed. v. United States 354 476, Sup. 1304, U. S. Ct. 1 2d 77 L. Ed. 1498. 6 Supra, page footnote at 191. 7 See, e.g., Ohio, supra, pages Jacobellis v. footnote at 192- 195.

713 matters obscenity just question would we of seizure, self-incrimination, and rights, of and civil search jury trial. Supreme Court further Jacdbellis, United

In States stated: compelled, re- regularly . . been “. The court has challenged Due

viewing under criminal convictions Amendment, recon- of the Fourteenth Clause Process cile the brought community which conflicting rights of the local defendant. prosecution individual it is admittedly delicate, but difficult a task is Such determining duty whether in the court’s inherent rights deprivation of particular conviction worked 8 guaranteed by Federal Constitution.” approved in Although community standard was McCauley Tropic Cancer, national standard by stipula- by also used trial here used the Amato Case. tion in sup- affirm, verdict

I because would not entire in view of the ported evidence substantial independent record, my examination but because of light proper publications and, in test obscenity, them I would find obscene. Obscenity (concurring). or J.

Robert W. Hansen, pornography protected United hard core obscenity meaning However, Constitution.1 States obscenity constitutionally defined and the fact must be properly established. 8 page Id. at 629, 635, Ginsberg (1968), S. v. United States 390 U. “Obscenity 195, stating: Sup. is not -within Ct. 20 L. Ed. Quoting approval protected speech press.” with

the area 476, 485, Roth States 354 U. S. from v. United hold is not Ed. 2d 1498: “We L. press.” constitutionally protected speech or the area of within

714

Constitutionally defined. “obscenity” ap-

Two of the word definitions have been proved meeting Supreme the United States Court as constitutional criteria. Pornography.” definition,

“Hard Core One held to be constitutionally antiseptic,2 “hard defines pornography,” core “. turn defined as that which . . predominantly upon morbid, sexually focuses what grossly perverse bizarre, any and without artistic or 3 purpose justification. scientific or ...” The writer prefer accept adopt pornog- would and this “hard core raphy” indicating may clearly definition as most what 2 (1966), 502, 503, Mishkin v. New York 383 U. S. 56, upholding constitutionality 16 L. Ed. 2d aof New anti-obscenity statute, York state sec. 1141 York New Law, making guilty Penal of a misdemeanor: “ person possession ‘1. A sell, who . . . has in his intent with lend, any lewd, obscene, lascivious, filthy, indecent, distribute . . . sadistic, disgusting prints, masochistic or book ... who or . . . utters, publishes, any manufactures, prepares any or in manner or such book or ... who “ any hires, employs, permits any person ‘2. In manner uses or doing any thing or section, do assist in act or mentioned in this or ” any of them.’ pre “‘. . . It material covered [obscene sec. focuses 1141] dominantly upon sexually morbid, grossly perverse what and bizarre, any justification. purpose without artistic or scientific Recognizable “by offers, invariably, sex, the insult and to spirit” (D. Pornography Obscenity the human H. Lawrence and [1930], p. 12) bawdy it is to be differentiated from the and the Depicting sake, ribald. vile, dirt for dirt’s the obscene is the coarse, sense, merely sensibility. rather than the the blow to smacks, times, fantasy unreality, perversion It at of sexual represents according thoughtful sickness to one scholar debauchery facility.” (Murray, “a of the sexual Literature and Censorship, Trial, 393, 394; see, also, 14 Books on Lockhart and McClure, Censorship Obscenity: Developing Constitutional Standards, People 65)’” County 45 Minn. Rev. Richmond L. News, 578, 586-587, Inc. Y. 2d 9 N. N. E. 2d 681. York, supra, pages 506, in Mishkin v. New Cited fn. at agreeing “. . it does considered obscene . describe something judges will ‘know . . . that most and others [they] it’ . . when . and that leaves the smallest see 4 disagreement. room for ...” obscenity, held “The Roth A definition of Test.” second valid, Case,5 constitutionally Roth from be derives capsulized only opinion plurality in Memoirs as “ requiring: (a) the of the material taken dominant theme appeals prurient sex; (b) a whole interest as patently con- material is offensive because affronts descrip- temporary community relating to the standards representation matters; (c) tion or of sexual and 6 redeeming utterly material' value.” without social is coalesce, Roth elements under Where these three obscenity, you and identifi- definition of have distinct constitutionally sup- may obscenity which a able state press, or It is this whether civil criminal sanction. opinion three-pronged majority definition which the adopts for Wisconsin.

Redeeming social value. pornography” requires

The core definition “hard constitutionally any or obscene be “without artistic purpose justification.” Roth definition scientific “utterly requires constitutionally unprotected that the be redeeming purpose social value.” The intent and without identical, qualifying requirements are but these two given placed poles interpretations them have them apart. trap Roth definition has

The semantic into which the by porno-critics porno-defenders alike in led set 4 Harlan, dissenting opinion, Memoirs v. Massa Justice Mr. Sup. (1966), 413, 457, chusetts 2d 1. 383 U. 86 Ct. 16 L. Ed. S. 5 Roth United States v. 354 U. S. 77 Ed. 2d 1498. L. Massachusetts, supra, page also: Memoirs See at States, supra, Ginsberg page referring v. United at determining under Roth formulation “. . . the plurality opinion in Memoirs v. Massachusetts. . . .” stated

underlining supreme “utterly.” All the word majority “[I]mplicit Roth in the had was: said history rejection Amendment of ob- the First scenity redeeming importance. utterly social without less-than-majority ...”7 United Commentators Supreme opinions entirely cor- States Court moved this suggested requirement rect into a ob- observation Roth, materials, “utterly redeem- scene under without be ing meaning value.” near bad Such reversal social enough, greater underlining from but harm come stressing “utterly” plurality added re- word quirement majority approved to a court observation. nothing “utterly” utterly phrase,

The word adds redeeming value.” To without some- “without social be thing completely definition it. To to be without lacking money completely without home or a be is colloquial coin roof over one’s head. In of the realm or get along usage, entirely “to do without” means with- Redundancy emphasis out. neither nor dimension. adds Overstressing nothing the word that adds has led to overlooking key word, “redeeming,” in the added-to- requirement Roth redeem- obscene be “without ing (Emphasis supplied.) social value.”

“Redeeming” to redeem sufficient or To means rescue. for, offset; redeem to “. . . make is amends atone 8 for; as, theology, to redeem an error.” In it means consequences.9 rescue from sin and its Inherent for; compensate for; definition to “. . make . amends 10° up for; as, play by acting.” make redeemed Something whisper a a more than whiff or of “social required “redeeming value” to make a it value.” social 7 States, supra, page Roth v. United at 484. 8 Elementary Dictionary, Book, A Webster’s Merriam-Webster published by Company (1941), page Book American at 511. Wagnall’s College Dictionary English Funk & Standard of the Language, published by Wagnall’s Company, page Funk & at 953. page Id. at orange floating open change An in an sewer does quotation into A a fruit larded-in or salad. from Plato enough Aristotle is not to redeem what otherwise com pletely A trailer with a on obscene. few words edu sex cation, posing doctor, recited an actor aas Danish does degradation. not redeem filth two hours filmed redemptive expanded To be under the Roth third requirements, value be to rescue social must sufficient or reclaim.

Properly established. constitutionally

Whether valid definition of ob- scenity is, it, the writer would make core as “hard pornography,” or, majority elects, of this court definition, Roth no more definition than does set prescribe determining standard or the test for whether particular photograph publication article, is obscene. completely majority holding The writer with the concurs this is an initial fact determination to made be joins majority or trier of fact. writer seeing merit to the Chief Justice Warren-Justice finding statement . . once Clark proper application made been below under a test, scope Roth . . .” the of review “. . . should requiring ‘sufficient evidence’ standard some- review — thing merely any something more than but evidence less than [including evidence ‘substantial on the record ” 12 allegedly obscene a whole.’ we material] as While long way have moved a from the ancient common-law concept jury’s of a exercise of discretion in near-limitless finding establishing damages, facts have we enough negate fact-finding travelled far function of 1 1 scope review, course, The situation and is identical if the pornography” adopted “hard core definition is as the standard or test. 12 dissenting, Justice Clark, Mr. Chief Justice WARREN-Mr. 184, 203, Jacobellis Ohio v. U. S. 2d L. Ed. 793. jury determine jury If a is trusted to or trier of fact. ought first-degree case, murder the fact of intent obscenity under to determine fact to be trusted subject properly limited proper trial instructions appellate court review. court and preference the “hard core the writer has a While obscenity, rather than pornography” definition definition, three-pronged with Roth the writer concurs constitutionally majority valid definition that a given fact of ob- jury applying scenity properly determined proper con- constitutionally writer test standard. completely in affirmance. curs Appel Adams-Marquette Cooperative, Inc., Electric Respondent. lant, Commission, v. Public Service No. 304.] [Case Company, Respondent, Pub- Electric

Madison Gas & Appellant: Commission, Wisconsin lic Service Light Intervenor-Appellant: Company, & Power City Intervenor-Respondent. [Case of Madison, No. 355.] Argued June June 1971.

Nos. 1971. Decided (Also reported 515.) in 188 N. W.

Case Details

Case Name: Court v. State

Court Name: Wisconsin Supreme Court

Date Published: Jun 29, 1971

Citation: 188 N.W.2d 475

Docket Number: State 36

Court Abbreviation: Wis.