*1 granted only appears the when it that result will upon possible different that another a retrial. While interpret favorably jury testimony could more hope defendant, have held that a new we jury will different from the evi draw inferences same grant dence not sufficient trial in the reason new justice. Lock v. State interests of 2dWis. 110, 119, 142 N. W. 183. jury judge
After its verdict, returned trial jury “amply beyond justified stated that all was reasonable all doubt of the evidence I He heard." jury told the “unqualifiedly” he subscribed He verdict. reaffirmed that in the conclusion denial motion defendant’s for new trial. His conclusions that the evidence was sufficient to sustain conviction and justice would not sup- be served a new trial are ported by the record.
By Judgment affirmed. Court. — Petitioner, v. Circuit ex Chobot, State rel. Court Respondent.* for County, Milwaukee Argued 2, 1973. No. State 179. October Decided 10, 1973. December (Also reported 690.) in 212 N. W. 2d * rehearing Motion denied, costs, February without on *3 by James Wal- petitioner there were briefs A. For Shellow, Shellow, all Shellow' & ratk, Gilda B. argument by Milwaukee, and oral Mr. Walrath. argued by Thomas respondent was cause For attorney on Balistreri, general, with whom assistant J. general. attorney Warren, Robert W. the brief was (1) That 944.21 contends: C. J. Chobot Hallows, vague unconstitutionally under Miller (1) (a), Stats., is companion cases and as as written v. California *4 1 49, (1973), Theatre I Slaton 413 U. S. Paris Adult v. See: Kaplan (1973), Sup. 2628, 446; v. 2d 93 Ct. 37 L. Ed. California Sup. 492; 115, 2680, 2d Alexander 93 Ct. 37 L. Ed. 413 U. S. 836, Sup. Virginia (1973), 2803, Ed. 2d Ct. L. 413 U. S. 93 37 483, Sup. 2789, (1973), 993; 413 93 Ct. Heller v. New York 496, Kentucky (1973), 93 745; 413 U. S. Roaden v. L. Ed. 2d . 757; Sup Orito 2796, States v. Ed. 2d United Ct. 37 L. 513; United States L. Ed. 2d 413 U. S. U. Reels Film S. v. 12 200-Ft. of Ed. 37 L. court; (2) that
heretofore to.meet construed may standards of this court not reconstrue definiteness, obscenity the test section so contains Miller; (3) if formulated in even this court re- section, construction cannot be retro- construes such actively applied prior to his acts. “obscenity”
There is no definition of 944.21 sec. provides: (1) (a), Stats., which “Lewd, matter, pictures per- or indecent obscene formances. following “(1) intentionally any Whoever does may $5,000 imprisoned fined not more than be or not years than 5 or more both: “(a) Imports, prints, pos- sells, advertises, has in his sale, publishes, or exhibits, session or com- transfers mercially any lewd, matter, or obscene indecent written ” film; picture, recording, sound vague written, this section on its face is under the |As by Miller, requires test laid down which a definition of I obscenity expressly either written in the statute or | n furnished by interpretation. homogenized In a society, it might everyone obscenity assumed understands what means, at period least for a time; reasonable but in pluralistic society our varying, changing with conduct, “obscenity” many word has come to mean things different people. Being different a criminal statute, 944.21 (a) give must fair notice of prohibited what pronouncement so, latest fluctuating of obscenity by definition the United requires Court now “obscenity” the term defined and limited in its terms to sexual conduct. pictorial obscenity Textual or is related to the freedom guaranteed speech by the first amendment to the Constitution; United States and while it has been said protected the first amendment constitution, this statement must be understood *5 terms. obscenity constitutional only defined in to include obscenity ain may Obscenity layman’s not be in sense a might considered sense; and even what constitutional given may be flagrant obscenity layman’s in a sense as protection. constitutional ob- modifying determine previous to
Miller, in rules a state recognizes permissible to extent which scenity, regulate constitutional may expression in a page at 23. The court states sense. dangers acknowledge . . . the inherent “. . . We any expression.
undertaking regulate State form of to designed regulate must be obscene materials statutes result, confine carefully a we now limited. As ... regulation which to works permissible scope of such must That conduct depict conduct. or describe sexual law, as applicable state specifically defined be written must also be offense authoritatively A state or construed. whole, which, as a taken limited to works portray sex, which prurient appeal sexual taken as a to the interest which, patently way, a offensive conduct artistic, literary, not have serious whole, do value.” political, or scientific “obscenity” are: guidelines the definition average applying con (a) person, ‘the “. . . whether
temporary work, would find standards’ prurient appeals interest whole, a taken as depicts describes, or ...(b) the work whether specifically de way, sexual conduct patently offensive (c) law, and applicable state whether fined artistic, literary, work, whole, taken lacks serious supra, California, value.” political or scientific regulating works are restricted Thus the states conduct, depict must be which describe sexual which or in its authoritative either in the statute defined construction; conduct defined judicial sexual so *6 manner; portrayed patently and must in offensive whole, work, portraying the conduct, so sexual taken as a average appeal prurient must to the in of the interest sex person judged community by contemporary standards political and have no literary, artistic, serious or scien- expression tific portrayal value. All other or of unde- apparently protected by fined conduct sexual is the first the amendment to constitution. appeals “prurient
What sex” interest in must judged by community standards. What amounts “patently the description offensive” in manner of is not expressly Miller, in defined but read is reasonable to being too, by as term, contemporary determined community (see page comment, 149, standards our in McCauley Tropic 134, v. Cancer (1963), Wis. 2d of [¡There 545). vagueness N. W. no is in the com monly meaning accepted artistic, ol “literary, the terms political by or qualified scientific these are the value’jand adjective important “serious” which means trifling.
Miller many has not made as modifications test, Roth-Memoirs at least in the Wisconsin construction of its might one statute, as at first blush Prior think. Miller, to the prevailing decision in test was that articulated in Memoirs v. Massachusetts 383 U. S. Ed. 2d 1, L. which merely itself redefined test of Roth United 354 U. S. 1 Ed. 2d 1498. L. In Memoirs, the page 418, at stated under Roth test: . . as subsequent “. elaborated in cases, three elements
must coalesce: it must be established (a) dominant theme of the material taken appeals as a whole prurient to a sex; (b) interest patently material offensive because it contemporary community affronts relating standards description representation utterly without matters; (c) the material sexual redeeming value.” social changes major argues were that at least three Chobot (1) That test: the Roth-Memoirs made define specifically as or construed must statute written means state conduct; (2) sexual require standards; opposed national redeeming “utterly material be without ment definite the more value” been social resigned artistic, concept literary, that the “serious material/have political or scientific value.” 944.21 prior construction
This court its *7 adopted Rath-Memoirs formula Stats., (1) (a), the obscenity modifications. with some tion of constitutional 2d 110, 2d 106 N. W. (1960), Chobot 12 In State v. Wis. obscenity and of 286, adopted the Roth test this court magazines finding certain that the trial court’s sustained (1) (a), construing 944.21 were, fact, In sec. so obscene. “lewd, or indecent” held the obscene the court words Tropic vague In constitutionally and indefinite. not were 545, the 134, 121 2d (1963), 20 2d N. W. Cancer Wis. of although obscenity again applied the Rath of test court declaratory judgment for a this in a civil action time involving declared The trial court had 269.565, Stats. sec. obscene; independent re Tropic after an to Cancer of upheld book, but sec. this court reversed view challenge against unconstitutional the that it was 269.565 the vagueness. court concluded reversing, In this given insufficient consideration court had trial attention had “commanded serious fact book stated, page importance” and literary of some work as purpose is apparent of serious a work 143: “[W]here readily tipped not toward involved, will scales obscenity.” of determination Supreme decided Court United States
In 1966 the supra, plurality in a Massachusetts, and Memoirs v. 362
opinion upon. the Roth test was redefined and elaborated of This court thereafter modified construction sec. its Stats., reflect the Memoirs (a), 944.21 formulation. In State v. 419, Voshart 159 2d (1968), 39 2d N. W. Wis. 1, question arose the context of a chal- lenge statute, and contraband 963.04 (5), sec. “lewd, indecent” held the obscene or words sense, interpreted in section “must be the constitutional including only printed or filmed that are materials protected by the first amendment the United States interpreted by Constitution as the United States The Roth-Memoirs Court.” pornog- hard-core test raphy test were both discussed material found obscene under both them. State Amato
In (1971), 638, 2d Wis. W.N. 29, 2d the court sustained a under 944.21 conviction (1) (a), Stats., material, relying for the sale obscene independent magazines on an review the involved and upon the Roth-Memoirs The court test. also considered Roth-Memoirs test had been modified whether Ginzburg v. United States 463, Redrup 16 L. v. New York Ed. 386 U. S. L. 2d 515. Ed. recognized Ginzburg theory We added that evi- pandering dence of the description the method of was relevant to the determination of purpose the dominant *8 Redrup the of material and did not foreclose a find- ing obscenity though of even allegedly the obscene pandered material was or sold to or minors so obtrusively displayed unwilling to cause to viewers it. see not affected these decisions. In State Kois (1971), v. 51 668, Wis. 2d 188 2d N. W. 467,** we stated that whether required this was accepted the Roth test as or not had modified ** sub Kois Reversed nom. v. (1972), Wisconsin 408 229, U. S. 92 2245, 33 2d L. Ed.
363 the trial affirmed Memoirs. In that case the court finding a news Kaleidoscope, that an of issue court’s recognized of paper, test also was obscene. We obscenity purposes in a state was for constitutional appeared had to be had followed what flux and the court majority plurality view time time the or from The cases since Court of the United States. Roth-Memoirs followed the Kois have referred and test.2 constituting steps procedure
However, not all of determining obscenity In v. followed. Court for were 683, 2d (1971), 475, 2d 188 N. W. Wis. State 1023,3 911, 3032, we 37 L. Ed. 2d independent appeal fashion- on abandoned an review cases, obscenity scope ed a new test review concluding, free-speech interest p. that “. . . the 698, juries protected courts of state when will strictly enjoined the constitutional standards are to follow making determination of of Roth in the initial only appeal findings are on such sustained and when evidence, in of the record substantial view when there is whole, to reach that conclusion.” as a independent required in Miller an review is However, 25): (p. regulates thus material “If a obscene state law the First Amendment
limited, construed, as written 683, 475; (1971), 2d Court v. 51 Wis. 2d N. W. State (1971), I, A II 53 Wis. 2d 191 N. W. v. State Woman — Part 763; 897; v. 55 Wis. 2d 197 W. 2d 2d Orito N. State Simpson 558; (1972), 56 Wis. 2d 201 N. W. 2d State State 204 W. 2d 514. v. Bruesewitz 57 Wis. N. State, supra, remand of Court v. have considered the We respective their what counsel to submit views on have ordered light (1) position in the of Miller on should be this court’s geographical independent scope area of review community standards. *9 364 through applicable the Fourteenth
values to states adequately protected Amendment are the ultimate independent power appellate of an to conduct courts necessary.” review of constitutional claims when majority scope The the court of believes that independent not review is at issue here and not would question reach scope independent of the re- therefore, question. view. court, reserves the rejected “contemporary community standards” aon national as unworkable. scale court never This accepted community Kois, a national standard. State v. supra; McCauley Tropic supra. v. The ma- Cancer, jority question of the court not reach the does of what community and, therefore, constitutes standards reserves question. Slaton, In Paris Adult Theatre I supra, the United Court held that not error to fail was require expert to evidence that certain are materials placed obscene when the materials are in evi themselves Prior decisions, expressly dence. these this court Amato, Court, held in I, in A Woman that it was reject expert error evidence that certain material according was obscene when placed the material itself was in evidence.4 Amato, Paris Adult supra, Theatre cited State v. certiorari denied, sub nom. Amato v. Wisconsin 404 U. S. supreme expressly L. Ed. 2d 751. While the judgment reserved question in Paris Adult Theatre on the capable expert testimony whether the trier of fact without determining prurient appeal of material directed at a bizarre group (a problem posed deviant Mishkin v. York New 56) 16 L. Ed. 2d reservation [this longer is no average relevant under Miller because the test is the man].*** *** opinion Withdrawn. See memorandum on motion for rehear- ing, post, p. 374a. *10 re changed which Miller the standard
Chobot claims any “utterly quired without the material to be obscene redeeming require the material to that social value” The political value.” or scientific artistic, lack “serious “utterly part test was the Roth-Memoirs without” of pointed in out strictly never followed this court. As concurring mis opinion Voshart, test a the in this was language original the Roth decision application of the in “utterly” nothing “with to the word and the word added that Court, the took the value out.” In court the view might a material cloak it with save obscene which be protection constitutional must social must redeeming “carry implicit the connota words and such judgment. They of a are words tion fact finder’s value suggest balancing view was that a of interests.” This II, supra, I,v. A at Woman — Part reiterated State pages 118, 119, in it stated: which was a redeem do that the value that will “Nor we believe piece contemporary prurient that affronts value, miniscule a mere scintilla of social is a ‘iota,’ If or infinitesimal value. the material value, an standards, objectionable on Roth-Memoirs the first two is it will dis- only by a that be redeemed social value is demonstrable, fact, finder of to a reasonable is cernible pervade material, the conjectural. It should platitudes appear a social cannot as noble with and message of uniform tenor the material. unrelated presupposes of the Roth-Memoirs test The third standard that qualities purport that material save makeweight redeeming evincing are value not mere social operation of the rule.” avoid contrived to Tropic Cancer, supra, McCauley v. this took In of literary a work had to have a “serious the view opinion “. . of purpose” . we are and we stated: involved, apparent purpose a of work serious where readily tipped will not toward determina- the scales obscenity.” court in its construction Thus this tion required purpose Both to constitute test serious concerned, Miller social So far all value. as Wisconsin is concept done is to limit the “social value” political literary, more restrictive or scientific artistic, sense; Consequently, all of which are social value. change respect no made substantial interpretation. Wisconsin only deficiency (1) (a), Stats., in sec. 944.21 express does not contain an definition of previous opinions
in terms of sexual conduct and our *11 expressly obscenity. question not have limited so The by whether court this can now the inter save section pretation supply a constitutional ob definition of scenity. argued by It is Chobot that court cannot this previous interpretations its part because have become a construing of the statute under the “A doctrine decision integral part a becomes an statute of the statute itself.” doctrine, frequently This court, followed the also has been honored its breach. There have been times when changed court this has its construction of a statute with referring out The doctrine. doctrine is all- not embracing may apply only and it well to the construction meaning of words which have a static and are so used. However, carry implications words which constitutional on footing, stand a different word, and when a as such obscenity, expressed is used an without the definition in County City Milwaukee (1933), Milwaukee 210 Wis. 447; 246 N. W. Thomas v. Industrial (1943), Comm. 206; Wis. 10 W. 2d N. Zimmerman v. Wisconsin Electric Pow er Co. 2d Zimmerman, Wis. 157 N. W. 2d In explained resting principle this doctrine was as on the once perceived the court unchanging has the enunciated historical legislative legislative intent, acquiescence fact of in the court’s interpretation acknowledgment amounts to the court was legislative correct. Since intent concept, is a historical dis once acquiesced in, cerned and something cannot later to be said else. legislature furnish the courts to statute, must intend meaning con constitutional its from time to time living cept a of that The word varies. constitution upon dependent document and in statutes words theory, constitution must no elastic. Under this he less Roth interpreted “obscenity” court in terms of this first Memoirs. interpretation and then in terms of modified its See, e.g., Voshart, Kois, supra, State v. State v. supra. alleged statutory interpretation If doctrine strictly adopted applied, not were this court could have Memoirs’ may pre It that the modification. doctrine complete interpretation, a do vents reversal of but we only make re not reach that issue here because we meaning keep finement or modification of the statute being Besides, from court unconstitutional. this has duty uphold past if in the statute it can and Huebner save a statute. See supplied deficiencies v. State 2d 505, 147 where Wis. N. W. granted hearing judicial this in sex deviate provided in order cases statute to save statute. recognize split authority there is a in other
We point. on Court of Indiana has states *12 obscenity for lack of held its unconstitutional statute (Ind. 1973), definition. Stroud v. State 2d 300 E.N. Distributors, v. in State J-R hand, 101. On the other Inc. (1973), 1049, 512 584, 72 2d Pac. 2d Wash. Wash- ington Supreme upheld prohibiting its statute Court state by affording material the term “ob- sale obscene scenity” judicial pur- an “authoritative construction” understanding Miller. of the suant to its mandate of v. Thevis (5th 2d United States 1973), In 484 Fed. Cir. Appeals position 1149, the Fifth Circuit Court took specific descriptions that the of sexual conduct demand- Miller can by supplied by ed authoritative statute judicial precisely construction. That is United what Supreme
States Court did itself in 12 200-Ft. Reels of (1973), Film 123, 7, 2665, n. Ct. 2670, 7, Supreme n. 37 L. 2d 500. Ed. The Ohio Court Keating State ex rel. “Vixen” v. 35 Ohio 215, 2d St. E. 2d has construed its Oh- N. scenity comport statute to with the enun standards People ciated in Miller. See also: v. Enskat Rptr. Cal. (Fla. Sup. and Rhodes v. Florida 1973), 283 2d So. 351. support proposition
Additional for the this court may comport now construe the statute to with obscenity may formulation of itself, be found in Miller p. 24, n. 6: hold, “We do not intimates, Mr. Justice as Brennan Oregon
that all other States than must now new enact existing statutes, statutes. Other state heretofore, construed hereafter, may adequate. well be (Emphasis supplied.) See United States v. 12 200-Ft. Reels Film 123, p. U. S. 500 [413 n. 2665, 2670, 37 L. Ed. ].” Consequently, Miller did not reverse lower court but “vacated and proceedings.” remanded further court directed the pro- remand court conduct further ceedings in a manner “not inconsistent with the first amendment opinion.” established Miller at In Paris Theatre, companion Adult case Miller, the court stated: light “. . . In nothing of these holdings, precludes the Georgia regulation state of from the allegedly obscene material exhibited in Paris Adult Theatre I or II, provided or applicable Georgia law, as written authoritatively interpreted Georgia courts, meets the First Amendment standards set forth in Miller (p. 69) . ...” California Again, the United Court’s mandate reads vacated and remanded for proceedings. further *13 companion cases. appears in all the Miller This mandate Significantly, opinion, where at the conclusion of each proceed- the remand is directed to conduct further court ings the amendment first inconsistent with by Miller, supreme United court cites established v. 12 Film States 200-Ft. Reels p. 130, 2665, 2670, n. L. Ed. n. 500. This footnote reads: to must state that, further note while we leave “We do have
courts a If and when vagueness thy,’ ‘indecent,’ construction of state we legislation, duty authoritatively . . . to construe federal statutes to the ‘serious raised as such a doubt’ is ‘lewd,’ ‘lascivious,’ ‘obscene,’ ‘fil- of the words regulat- ‘immoral,’ to or as used described (a) U. ed material sec. in 19 U. C. and 18 S. C. S. prepared terms 1462 ... are to construe such we limiting regulated patently material to offensive as specific representations descriptions ‘hard core’ or given examples California, as course, in Miller v. sexual conduct Congress always ante, Of could de- at ... specific other fine ‘hard core’ conduct.” appears it Thus United Court has effect the federal statute and invited state construed has appellate to their to courts construe statutes comport with the Miller standards. duty power conclude and the
We has “obscenity” in to define terms of minimum standards legislature If the de to save statute. Wisconsin modify certainly add definition, or to such sires power therefore, do We, so. construe (1) (a), Stats., word “obscene” sec. 944.21 to mean depict conduct, (1) or describe sexual works which appeal prurient a taken as whole which interest sex, (2) portray which taken a whole sexual conduct as way patently in a offensive taken which political do not have serious literary, artistic, whole appeals prurient work scientific value. Whether *14 370 depicts and it con
interest whether or describes sexual way patently in a offensive whether duct and literary, artistic, political or scientific value are serious average person upon to be determined its effect applying contemporary standards.**** Sexual conduct is to be defined of sexual intercourse be acts simulated, humans, perverted, tween normal actual or masturbation, fellatio, cunnilingus, of and acts acts exhibition, genitals excretory function, lewd especially in a and relations stimulated condition sexual authoritatively and As between animals. thus humans construed, (1) (a) postulated sec. meets the 944.21 test by Miller. argument of
The last Chobot is court’s con- comport Stats., struction of 944.21 (a), with apply Miller cannot to him he had because no fair warn- ing of such construction. 347, (1964), cites Bouie v.
Chobot Columbia U. 378 S. Sup. 1697, 894, 84 proposition Ct. 12 L. for Ed. Douglas may apply. that the construction not Mr. Justice proposition cited this case for the same dissent in his (p. 37). However, Miller, since mandates 1, 12 Paris Adult Film, Theatre 200-Ft. Reels Orito, companion cases, only did not reverse but vacated proceedings remanded the cases for further in Miller, it appear consistent with would supreme expression intended its latest to be applied to prior committed offenses to its announcement supreme long recognized in Miller. The court has limiting once a construction of a criminal statute rendered which potential is sufficient to rehabilitate the vagueness statute, may such ap construction plied punish occurring prior conduct construc (1965), tion. Dombrowski v. 479, 380 U. S. Pfister **** parenthetical opinion See added citation in memorandum on rehearing, p. post, 374b.
371 22; Poulos New Sup. 1116, v. 7, n. 85 14 Ed. 2d Ct. L. 97 Hampshire Sup. 760, Ct. (1953), 395, 345 U. S. Hampshire 1105; 312 U. S. (1941), Cox v. New L. Ed. New 569, 1049; v. Winters 85 L. Ed. Ed. York 92. L. U. S. subject limitation doctrine, however, 840. This warning to the defend- application fair such affords Jersey Lanzetta New ant. *15 Younger
Sup. 888; Harris 618, see also: v. 83 L. Ed. Ct. 746, 27 L. Ed. 401 U. S. Ct. Douglas Buder 669. v. 412 U. S. relied on 2d 52. The Bowie Case
2199, 37 L. Ed. substantially the rule. Chobot states same construc- . . . state-court “When [an] unforeseeable retroactively to applied a criminal tion of statute is conduct, person liability past subject the effect is to sense to criminal process him in the deprive of due of law warning contemplated that conduct of his fair supplied.) Bouie v. (Emphasis a crime.” constitutes Columbia, supra, at 355. foregoing question The construction thus is whether ap- preclude as to its retroactive was so unforeseeable occurring prior plication punish to rendi- conduct tion of construction. subsequent trial in rendered
Some decisions courts retroactivity Miller have discussed the issue without de- Cryan ciding Theatres, (D. v. Hamar Inc. C. N. J. it. See Quinn 1312; Literature, 1973), Supp. Inc. v. 365 Fed. Papp (Fla. 372; (1st 1973), State Cir. 482 Fed. 2d v. 600; App. 1973), United 4th of 281 So. 2d Dist. Ct. Supp. Lang 1973), (D. 361 Fed. C. Cal. 1973), (Fla. Sup. also: Rhodes v. State See So. 2d 351.
However, view, Miller not made drastic in our such changes obscenity Roth- in that now the law brought specifically Memoirs-Miller test needs to be persons the attention of that all can be said before changes comports process. notice with due wrought by Miller are not modifications so substantial prior in interpretations view of this statute court’s given process requires that notice due that a defendant changes of the latest are the so modifications. Nor obeying as to serious one intent on mislead law. yet Chobot has not been tried we do not know what so may show, evidence but the definition of ?the ) ground previous in interpreta- Miller covers less than the tion of the respect statute this court 'j ( Chobot cannot be hurt and should be tried under the )interpretation (1) (a), Stats., 944.21 herein de- clared. argues might While state conduct Chobot’s permissibly judged according to the Roth-Memoirs test prior since it opinion, occurred to the Miller we concluded contrary this is to the mandates. The mandates Miller, Theatre, Paris Adult Film, 12 200-Ft. Reels companion cases, leave no doubt Miller test rather than the Roth-Memoirs applied test should be proceedings; the further a fortiori the Roth-Memoirs- *16 applied Miller pending test should to other cases. By petition the Court. —The prohibition for a writ of is denied. (concurring). J. question I would reach the
Wilkie, scope of independent the of the by appellate review this join separate court and in opinion the of Mr. Chief Justice scope to the as that Agreeing of review. Hallows majority with I point the would not at this reach the question geographical of the community area of the standards. part). C. J. (dissenting, I would reach
Hallows, question scope the of independent the of by the review court com- this and also state court has held what this munity question to mean. It not a of reach- standards is ing community changed our standards. Miller has not prior question. on this heard decisions When this court stage this case in motion, its initial it decided to change proceeding original the one for an I action. thought opinion was intended that would answer questions all the by Miller raised so that this case pending degree other cases could be tried with some of certainty if we held the statute constitutional. question
There scope is no independent review include all obscenity. must the elements of This court cannot make a part of review of a constitutional concept and have different for part tests another of concept. process Due requires under independent judgment reviewing exercise its a determination that material is obscene in the constitu- tional sense encompass and this review all must three up concept elements which make obscenity.1 In independent an review, by this court not bound such quoted p. directive from Miller at 24 must be considered light in the application the court’s later statement arrive at a ap determination of what peals prurient patently interest or is offensive constitutes Considering authority factual determination. cited Miller light Wisconsin, and in Kois each element of the “question test calls for the determination of a of constitutional fact,” independently which must appellate reviewed 25, citing court. See Miller Wisconsin, at Kois v. at Massachusetts, 232; supra, Memoirs v. 383 U. S. at (HAR LAN, J., dissenting); also v. Indiana Watts 49, 51, 338 U. S. 93 L. Ed. wherein it is stated: “. . . ‘issue many of fact’ a coat of It colors. does not cover a conclusion happenings, drawn from uncontroverted when that in conclusion corporates standards of judgment conduct or criteria which rights. themselves are decisive of constitutional Such standards criteria, against requirements measured drawn from con provisions, proper stitutional *17 applications, their are issues adjudication.” for this court’s
374
appellate rules as “credible evidence to sustain verdict,” great weight preponderance” “the and clear limiting any only other rule.2 are factors These now may exercising which be considered in inde- court’s pendent judgment. The United Court independent in its on decisions review has by ordinary appellate bound been rules. review problem contemporary I no community see on stan- accept concept dards. did This never of national community (1971), standards.3 State v. Kois 51 2dWis. 668, 467; McCauley Tropic 188 2d N. W. v. Cancer (1963), 20 134, Therefore, Wis. 2d N. W. changed Miller has not the Wisconsin law as existed prior to that decision. Nor do I requiring read Miller as local standards. Wisconsin law awas statewide standard, not local.
Community standards must
adopt
If
statewide.
we
they
local standards, are
city
county
to be on a
basis,
basis, circuit court basis, or some other basis? Should
something be determined not
obscene Milwaukee and
yet be
Pepin county?
obscene in
separate
Is there to be a
metropolitan
standard for
areas
from
different
rural
areas ? Are the federal
courts Wisconsin to
follow
community
standards
state
or is
courts
there to
be one standard in the eastern district
another
2 See:
Court v. State
683,
51 Wis. 2d
374a juries from western are drawn district because is jury different then waived, If the what districts? is the area of the ? If a national standard local standard says I a local standard unworkable, is, as Miller it find much more than national standards. unworkable Tropic
In committed Cancer in Kois this court community itself standards. This statewide applied reasoning, a standard on the subse- statewide quently by accepted the United Court anything Miller, that else would be Since unworkable. judgment (6), Stats.,4 permitted 269.565 ob- scenity collaterally to be used in a criminal trial some cases, the If standard could not than be less statewide. standard, not Wisconsin does have a statewide this by majority The members, statute is emasculated. reaching question impres- stating, this and so leave the perhaps justified. local are This sion only guidance approach not no but invites furnishes appeals. following opinion February was filed on 5, 1974: (on rehearing). motion In this court’s Per Curiam for
original opinion Court, in State ex Chobot v. Circuit rel. this court wrote: appeals prurient . . a work inter- “. Whether depicts est and whether or conduct describes sexual patently way
in a offensive and whether it has serious against Declaratory judgments “269.666 obscene matter. . . Admissibility prosecutions. “(6) any in CRIMINAL In trial 944.22, proceeding violation of s. 944.21 or under judgment (3) section and the final of the circuit court under sub. adjudication interlocutory (1m), or the under sub. shall in evidence on the issue of said admissible knowledge matter and on the issue the defendant’s said obscene; provided, judgment if the of the court matter sought holding one to be introduced evidence is the matter 374b
literary, political are artistic, value or scientific upon person average apply determined its effect ing (Emphasis contemporary standards.” supplied.) ante, Court, State ex rel. v. Circuit Chobot p. 354, 369, 212 N. 2dW. petitioner
This and the re has been both the read *19 spondent constituting by therein as disavowance this court of the United Court’s decision v. New York Mishkin applies allegedly 2d L. Ed. it obscene group.
material which is directed towards a deviant particular Such is not the If material case. is aimed at a group average person, deviant than the rather then such judged upon impact upon material should be its group. deviant
Thus, following opinion it our clause which is appears page in footnote 4 on be withdrawn. should longer no
“. . . this reservation is relevant under Mil- average ler because test is man.” Similarly, opinion opinion it is our this court’s should be amended to read as follows: appeals prurient a work interest and Whether depicts whether it or sexual conduct in a describes patently way offensive and whether has serious liter- ary, artistic, political or scientific value are to deter- upon average person applying mined contemporary its effect (See, however, standards. York, Mishkin v. supra.) New obscene, it shall not be admitted unless the defendant in said criminal action was served with notice of the action under section, appeared it, or is later with notice served judgment hereunder, of the court prosecution and the criminal upon based occurring conduct said defendant more than 18 hours after such appearance, service or such whichever is earlier.” rehearing Motion denied. for (dissenting rehearing). J. on motion Hallows, C. I do not believe this state standards under two construing. (a), Stats., 944.21 which this court why sexually group I no see reason deviant should its have own standard and be allowed buy average material which man cannot. A sex greater rights average deviant should not have than the give rights. man. does not such I am authorized state Mr. Justice Han- W. Robert joins in this dissent. sen
Naden, Respondent,* wife, Appellants.* v. Johnson Argued October 1973. Decided No. December 1973. reported (Also 585.) 212 N. W. *20 * rehearing denied, February 5, Motions for costs, without on