136 So. 2d 8 | Fla. Dist. Ct. App. | 1961
In case #61-660, appellant Gerstein seeks review of an order denying his motion for
The trial court stated in its order that it was prevented from entering a summary decree by the presence of a genuine issue of material fact, the obscene character of the book, which it felt should be judged by the court sitting as a trier of fact upon the presentation of testimony of expert witnesses to establish and prove the contemporary community standards in Dade County by which obscenity should be measured.
The determinative question here is . whether the trial court erred in denying the state’s motion for summary judgment. We hold that it did not.
It was within the province of the court, as trier of the facts, to determine the contemporary community standards by which obscenity should be measured and apply them to the questioned publication. It was equally within its province to seek aid, in the form of expert testimony, in making this determination. See State v. Clein, Fla.1957, 93 So.2d 876; Rachleff v. Mahon, Fla.App.1960, 124 So.2d 878.
In case #61-661, appellant Tralins contends that it was error for the trial court to deny his motion for a jury trial on the issue of obscenity.
This action was equitable in nature, styled on the chancery side, and sought a declaratory decree. We affirm the denial of appellant’s motion for a jury trial on the authority of Rachleff v. Mahon, supra, at p. 881, 124 So.2d at p. 881, where the court said:
“We know of no constitutional or statutory requirement of jury trial in this kind of declaratory • decree proceeding * * *. Jury trial of issues under the Declaratory Decree Statute, F.S., Ch. 87, F.S.A., is permissive, but not mandatory, in certain instances, Sec. 87.08.”
See also Olins, Inc. v. Avis Rental Car System of Florida, Fla.App.1961, 131 So.2d 20.
Affirmed.