3 Conn. Cir. Ct. 438 | Conn. App. Ct. | 1965
Lead Opinion
The defendant was convicted of selling a book, allegedly obscene, in violation of § 53-243 of the General Statutes, the pertinent part of which reads as follows: “Any person who . . . sells . . . or has in his possession with intent to sell . . . any book . . . containing obscene, indecent or impure language . . . shall be” punished. The only evidence of obscenity was the book itself, which is before us as an exhibit. Neither side offered any expert testimony to assist or guide the trial court in reaching its decision; nor was such evidence, though admissible, indispensable in order that the court reach the
The essential facts are not challenged.
The foregoing facts, found by the court, are not vulnerable to the defendant’s attack by his motion to correct the finding. Whatever corrections are sought are of an inconsequential nature and would in no material respect influence our consideration of the defendant’s claims as to erroneous conclusions
The issues of law raised by the defendant may be simply stated: (1) Was the book.in question obscene within the terms of § 53-243 and under the constitutional standards established by the Supreme Court of the United States? (2) Was there error in the finding that the defendant knew that the book was obscene? (3) Did the court err in finding the defendant guilty of the crime charged on evidence beyond a reasonable doubt?
A general outline of the contents of the book, which we have read, appears on its jacket thus: “Cast in the traditional literary form of a diary, it is a day-by-day account of Gerard Sorme’s adventures — with Gertrude and her niece Caroline, with Carlotta, the German servant girl, with Diana, wife of a somewhat mad composer and inventor, and with Cunningham, who practices a form of sexual ‘black magic’.” This is a rather modest appraisal, both in the scope of its theme and in the number of the erotic characters and the lubricious episodes in which they are linked. The sexual scenes and experiences, narrated in meticulous detail and without a trace of shyness or reticence, are vivid portrayals or broad hints of libidinous relations and interactions of a heterosexual and homosexual sort and include thinly disguised suggestions of practices sexually perverse. The author, in expressing his aims on the cover of the book, states that it was written because he felt that “no one has ever treated sex, from the man’s angle, with intelligence as well as frankness.” He entertains the hope that the book speaks for itself. We may add the comment that the book also speaks at times in a language which is not uttered in our classrooms, or in public places, or in the living and drawing rooms of private homes; nor does it serve a useful purpose in polite conversation
The defendant’s first claim of error does not present a new question of law. “Obscenity is not protected by the unconditional language of the first amendment to the federal constitution. Roth v. United States, 354 U.S. 476, 483 .... The primary requirements of decency may be enforced against obscene publications. Kingsley Books, Inc. v. Brown, 354 U.S. 436, 440 . . . ; Chaplinsky v. New Hampshire, 316 U.S. 568, 572 .... The same holds true of article first, § 6, of the constitution of Connecticut.” State v. Sul, 146 Conn. 78, 84.
In every appeal from a conviction based upon the sale of a book allegedly obscene, the determination of the issue of obscenity involves a constitutional judgment Avhich the appellate court is under a duty to make independently. “Hence we reaffirm the principle that, in ‘obscenity’ cases as in all others involving rights derived from the First Amendment guarantees of free expression, this Court cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.” Jacobellis v. Ohio, 378 U.S. 184, 190. In State v. Andrews, 150 Conn. 92, 100, Chief Justice Baldwin, quoting from the dissenting opinion of Mr. Justice Harlan in Roth v. United States, supra, 497, reiterated the same rule as applicable in state eases in Connecticut: “[T]he constitutional question whether a particular book may be suppressed cannot be a ‘mere matter of classification, of “fact”, to be entrusted to a fact-finder and insulated from independent constitutional judgment. . . . The suppression of a particular writing or other tangible form of expression is, therefore, an individual matter, and . . . raises an individual constitutional problem, in which a reviewing court must determine for itself whether
The test contemplates that, to be excluded from constitutional protection, any manifestation or work of speech or expression, considered as a whole, must have a predominant appeal to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and must go substantially beyond the customary limits of candor in describing or representing such matters; and that it is utterly without redeeming social importance and serves no useful social purpose. The apt criterion is whether to the average person, applying contemporary community standards, on a national basis, the dominant theme of the material, taken as a whole, appeals to prurient interest. Jacobellis v. Ohio, supra, 191, 195; Roth v. United States, supra, 484, 487 n.20, 489; State v. Andrews, supra, 102; State v. Sul, supra, 85.
It has often been asserted that the legislative intendment of a “censorship” statute such as ours was to prevent dissemination of material deemed harmful to the moral, disciplined, healthful and happy development of children. This objective can be and has been reached under the provisions of § 53-244, aimed specifically at the sale or delivery of such material to persons under the age of eighteen years. The enforcement of a similar statute in
In applying the foregoing tests of obscenity, we make no pretense of passing a judgment on the literary value or artistic merit of the book before us and subject to our original examination. We may note in passing, however, that from antiquity to our present day many works have found acceptance among the community at large as well as among those of discriminating literary taste, notwithstanding their apparent crudities in theme and a base vulgarity in expression.
In further consideration of the issue before us, it is our opinion that we are free to make a judicial comparison between the book in question and other contemporaneous publications (examined by us) of
For the foregoing reasons, we conclude that the book “The Sex Diary of Gerard Sorme” is not obscene or indecent within the terms of § 53-243. It therefore becomes unnecessary to decide the defendant’s remaining claims of error.
There is error; the judgment is set aside and the case is remanded with direction to render judgment that the defendant is not guilty and ordering that he be discharged.
In this opinion Dearie-gtox, J., concurred.
The transcript filed by the defendant in support of his motion to correct the finding and his general assignment of error (Practice Book §§ 960, 995) shows that the main issue presented on trial was that of scienter. The court necessarily would first have to and did include in its finding the necessary subordinate facts and conclusions as to obscenity, and that issue is properly before us on appeal.
Cf. Petronius, “The Satyricon,” a startlingly direct account of amorous and perverted sex episodes and fashions prevailing in Nero’s time during the decadence of the Roman Empire; Juvenal’s Second, Sixth and Ninth Satires; Ovid’s, “Ars Amatoria”; and others of like import which can be purchased in college bookstores or found in university libraries.
Concurrence Opinion
(concurring). In Colin Wilson’s weird sex diary
This is a paperback edition of Wilson’s book, “The Sex Diary of Gerard Sorme” (Dial Press, 1963), and is priced at 75 cents a copy. The front jacket blurb reads: “An extraordinary original — often outrageous novel by the author of the outsider and the first of England’s so-called Angry Young Men . . . .”
See, for example, reviews in the following publications: 38 Library Journal, No. 9, p. 1905 (May 1, 1963); The Atlantic, p. 126 (Sept. 1963); The New Republic, p. 32 (May 4, 1963); Newsweek, p. 87 (June 3, 1963); Time, p. 87 (May 31, 1963); New York Herald Tribune, Book Section, p. 10 (June 23, 1963); The New Yorker, p. 177 (May 18, 1963); The Times Literary Supplement, p. 881 (Nov. 1, 1963) ; New Statesman, p. 623 (Nov. 1, 1963) ; Punch, p. 688 (Nov. 6, 1963); cf. The Oregonian (May 5, 1963).
Time, p. 87 (May 31, 1963).
We referred to Roth v. United States, 354 U.S. 476, State v. Sul, 346 Conn. 78, and State v. Andrews, 150 Conn. 92 as the Roth-Sul
See Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (New York statute permitting the banning of motion picture films on a censor’s finding that the film is “sacrilegious” held void as a prior restraint on freedom of speech and press); Superior Films, Inc. v. Department of Education and Commercial Pictures Corporation v. Regents, 346 U.S. 587 (judgments reversed on authority of Joseph Burstyn, Inc. v. Wilson, supra); Kingsley Books, Inc. v. Brown, 354 U.S. 436 (New York proceedings enjoining distribution of “Nights of Horror”; statute sustained as a remedial scheme for the outlawry of obscene books); Adams Newark Theater Co. v. Newark, 354 U.S. 931 (constitutionality of Newark ordinance prohibiting the showing of “lewd, obscene or indecent” performances sustained in per curiam decision); Both v. United States (conviction for mailing of obscene material under federal antiobscenity statute sustained), and Alberts v. California (conviction for selling obscene and indecent books under California penal code sustained), 354 U.S. 476; Times Film Corporation v. Chicago, 355 U.S. 35 (motion picture “Game of Love” held non-obscene, per curiam, reversing 244 F.2d 432); Mounce v. United States, 355 U.S. 180 (imported collection of nudist and art student publications containing many nude photographs; per curiam, reversing 247 F.2d 148); One, Inc. v. Olesen, 355 U.S. 371 (postal order finding “One — The Homosexual Magazine” nonmailable because obscene; per curiam, reversing 241 F.2d 772); Sunshine Book Co. v. Summerfield, 355 U.S. 372 (postal order holding magazines “Sunshine and Health” and “Sun Magazine” obscene; per curiam, reversing 249 F.2d 114); cf. State v. Martin, 3 Conn. Cir. Ct. 309 ; Kingsley International Pictures Corporation v. Regents, 360 U.S. 684 (Regents’ determination that French film version of D. H. Lawrence’s novel, “Lady Chatterley’s Lover,” was “immoral”; New York statute held unconstitutional, reversing 4 N.Y.2d 349); Smith v. California, 361 U.S. 147 (requirement of scienter in criminal prosecutions for obscenity essential; reversing 161 Cal. App. 2d Sup. 860); see State v. Andrews, 150 Conn. 92, 95; Marcus v. Search Warrant, 367 U.S. 717 (Missouri’s use of the search and seizure power to suppress