VERA PAULINE MALONE V. STATE
No. 32,005
October 19, 1960
Appellant‘s Motion for Rehearing Overruled November 16, 1960
231
The judgment is reversed and the cause remanded.
DAVIDSON, Judge, concurred.
WOODLEY, Judge, dissented
Seymour Lieberman, Houston, for appellant.
Dan Walton, District Attorney, Carl E. F. Dally, James T. Garrett, Assistants District Attorney, Houston, and Leon Douglas, State‘s Attorney, Austin, for the state.
MORRISON, Presiding Judge.
The offense is possession of magazines for the purpose of sale in violation of
At the outset, appellant challenges the constitutionality of
The pertinent portion of
“Whoever shall within this State engage in the business of editing, publishing, or disseminating any pamphlet, magazine, or any printed paper devoted mainly or purporting to be devoted mainly to the publications of whoring, lechery, assignations, intrigues between men and women or immoral conduct of persons, or of depraved acts showing violent brutality, or shall knowingly have in his possession for sale or shall keep for sale or distribute or in any way assist in the sale or shall give away such pamphlet, magazine or printed matter in this State * * * .”
We are cognizant of the fact that the guaranties of freedom of the press are not absolute at all times and under all circumstances. The protection given by the Federal and Texas Constitutions to the press does not include the possession, by a person knowingly, for the purpose of sale of any magazine containing material which is denounced by penal statute and condemned when measured by application of the following test: “Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”
The Supreme Court of the United States has announced the above test as applicable to cases of the nature of the one before us, and such rule is here controlling. Roth v. U. S. & Alberts v. Calif. 354 U. S. 476, 1 L. ed. 2d 1498, 77 S. Ct. 1304 (1957), and numerous cases therein cited and reviewed. It is therefore concluded that the provisions of
It is further urged in the motion to quash that the provisions of
However, it is contended that the trial court erred in refusing to give requested charges which were, in substance, that the magazines were not to be considered in detached and separate portions but as a whole, and by the present day standards of magazines and literature sold and distributed in the community.
It will be noted that appellant introduced evidence which raised the matters presented by the requested charges, and she was entitled to have these matters submitted to the jury by an appropriate instruction, applying the test set forth in Roth v. U. S., or one of similar import, such as, whether to the average person, applying the existing community standards at the time and place alleged, the material, as a whole, is devoted mainly to, and appeals to, lustful interest.
In People v. Bunis, 298 N.Y.S. 2d 568, a prosecution for the sale of obscene magazines, reversed on other grounds, we find the following:
“It cannot be controverted today that to find a defendant guilty of a violation of
Section 1141 , we must have first: a showing that the items that form the basis of the charge are obscene. The test of obscenity is a varying one, not a static one. It is not possible of exact definition. The proper test of obscenity today is whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. Any test which is based on other considerations such as the possible effect on the young and very susceptible, or, on the other hand, on the sensualists and libertines, does not meet the constitutional test of obscenity. Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. ed. 2d 1498; Peopel v. Brooklyn News Co., 12 Misc. 2d 768, 174 N.Y.S. 2d 813.”
In this case, no instruction was given informing the jury of the test set out in Roth. If the jury had been so instructed and had found that the test when applied to said magazines did not condemn them, then such findings would have authorized an acquittal. In the absence of such instruction, appellant was deprived of a valuable right and the refusal was prejudicial. The requested charges were sufficient to call the trial court‘s attention to the omission and preserve the error.
The judgment is reversed and the cause remanded.
CONCURRING OPINION
DAVIDSON, Judge, (concurring).
I concur in the reversal of this conviction. I would reverse it, however, for the reason that the evidence is insufficient to support the conviction. Especially is this true in that there is no evidence that appellant knew or had knowledge of the contents of the magazines or that such magazines offended against the statute.
The learned trial judge instructed the jury that “The terms ‘knowingly’ as used in this charge is defined as an act which is consciously and willfully done.” “Willful” means “intentional.”
The jury was instructed to the effect that if appellant “did not have any knowledge of the contents of the magazine[s]” she should be acquitted. The undisputed evidence so shows.
“Malone‘s News Stand,” situated on one of the principal streets of downtown Houston, was engaged in the business of
In the operation of the place of business, appellant assisted in the morning hours on a relief basis. She had nothing to do with the general operation of the business or the buying or selection of the publications to be sold or offered for sale.
About 11 o‘clock, a.m., on the day of the alleged offense, two vice-squad policemen of the city of Houston went to the newsstand and there selected three magazines from among other periodicals in excess of five thousand displayed and offered for sale on the newsstand.
The officers took the magazines to the appellant, who was in charge of the cash register, and paid her $1, the price she fixed for the three magazines.
Appellant had been at work only a short time. There was evidence that none of the magazines purchased had been on the newsstand more than two days prior to the sale. There was no direct evidence that appellant knew of the contents of the magazines or that she had anything to do with the the selection of the magazines to be sold and offered for sale. If appellant ever saw the magazines prior to the sale there is no evidence to so show.
In the light of what has been said it is apparent that appellant‘s knowledge of the contents of the magazines is imputed and made to depend, alone, upon the fact that she, as cashier, received the purchase money for the ones which the police officers had selected of their own accord without any suggestion or assistance from her.
To my mind, the insufficiency of the evidence is thus demonstrated.
The statute under which this prosecution is brought is unconstitutional and invalid for the reason that it is so indefinitely framed and of such doubtful construction that it can not be understood from the language in which it is expressed and is therefore insufficient as a penal statute.
I cited the authorities supporting that rule in my dissenting opinion in Rowland v. State, 166 Tex. Cr. R. 118, 311 S. W. 2d 842.
This means that a publication does not offend against the statute and is therefore not unlawful unless and until such publication is principally devoted to the subject matter denounced. What constitutes “mainly” is left entirely to the viewpoint of those seeking to enforce the law.
So, then, the statute is not one penalizing the sale or possession of obscene literature but, rather, the sale and possession of publications devoted mainly to obscenity. It makes no difference how obscene any publication may be, it is not unlawful unless in its entirety the publication is mainly obscene.
The offense created, therefore, punishes the amount of obscenity in the publication rather than the outlawry of obscene literature entirely.
So far as I am concerned, a publication containing one page of obscene matter is just as obnoxious and harmful and should be outlawed the same as one in which the majority of the pages are mainly devoted to obscenity.
I am at a loss to understand how the amount of obscenity in a publication could determine its lawfulness. If the publication is obscene at all, it ought to be outlawed because of that fact; the amount of obscenity therein ought not to be the determining factor of guilt.
Who determines if the publication is obscene? Who determines when an obscene publication is devoted mainly to obscene matters? It is not the legislature of this state, for it has not said. The legislature is without power or authority to delegate to some law enforcing agency or court the right to make that determination. It is the exclusive province of the legislature to write the criminal laws of this state by and thru which men are tried for their liberty.
WOODLEY, Judge, (dissenting).
The contents of the magazine which appellant admitted in her testimony that she sold to the officer who arrested her does
This is the very conduct which the legislature of this state has, in its wisdom, made unlawful by the enactment of
Under the court‘s charge, the jury in order to convict was required to find beyond a reasonable doubt that appellant had knowledge of the contents of the magazine and that she distributed it “for the purpose of corrupting and depraving the average person.” If there was error in failing to instruct the jury that the contents of the magazine were to be considered as a whole and by present day standards of the average man, the error, in view of the evidence and the charge given, was harmless and not ground for reversal.
I do not agree that the jury would have had authority to say that the possession of such a magazine for sale was lawful because its contents “have practically become contemporary literature for the City of Houston“, as counsel suggests. Even the witnesses for the defense admitted that the magazine was “trash.”