*1 Appellant. State, Respondent, Simpson, Argued September 11, Nos. State 1972. Decided October (Also reported 558.) in 201 N. W. 2d *2 31] *3 & Shel- brief Shellow appellant
For there was Milwaukee, oral Walrath, A. all low and James argument by Mr. Walrath. argued Thomas respondent the cause was
For the on Balistreri, attorney general, with whom J. assistant attorney general. Warren, Robert brief was W. Wilkie, on this several issues J. raises appeal: facts complaints essential
1. Did the criminal state to conclude man leаd a reasonable which would probable been com- had cause that a crime there probably it? committed mitted defendant had and that identify the required to nature 2. the state Was recipient group” probable to which the “intended of the and adduce evidence these were directed group trial nature of that ? evi- into introduction of Was the their
dence, evidence, prove further without sufficient obscenity beyond a reasonable doubt ? jury? properly
4. Did trial court instruct publications a matter Are these law? complaints
1. Did state essential criminal facts lead a would reasonable man to conclude that *4 probable there cause that crime com- had been probably mitted and had committed it? defendant specific objections makes numerous complaints Up Flip three criminal here. The Heads and Flop complaints identically read as follows: complainant “This has read and all examined these magazines named and predominantly found them to de- pict photographs of male and female nudes and semi-
31 provocative positions their and seductive with nudes genitalia exposed clearly. area most The central and magazine exposure dominant theme of the of the genitalia value. ant throughout magazine literary area. has no social or magazines complain- That other familiаr to this containing photographs predominantly similar magazines juries were determined to be obscene year.” circuit court within the last complaint Each further states that defendant: feloniously intentionally “. . . did sell obscene magazines, (1) publication indecent one to-wit: en- Up,’ contrary titled, [‘Flip Flop,’] ‘Heads to section (1) (a) 944.21 of the Wisconsin Criminal Code.” respect involving complaint With to the third magazines Jaybird entitled Wild-Cats and Scene, complaint аlso asserts that: magazines “These said are marked 2 1 and Exhibits part complaint.
and made of this These said and other open similar were in view seller, Simpson, Errol public.” J. and the complaints. stated in iSufficient facts complaint allegations Whether a contains sufficient many fact been has stated times be allegations whether complaint of fact made in the are magistrate for sufficient “a fair-minded con- [to] alleged clude that justify facts and circumstances further proceedings criminal charges are merely capricious.” adequacy” “Minimal in a suggested evaluation commonsense has been de- question.2 terminative ex State (1970), rel. Cullen 432, 444, v. Ceci 2dWis. 175, citing
N. 2d (1965), W. Jaben v. United States 381 U. S. 214, 14 L. 2d 345. Ed. Seraphim State ex rel. Evanow 40 Wis. 2d 2d 161 N. W. *5 charge suf- facts complaint must itself
Although the probable that inferences give to rise to reasonable ficient underlying need circumstances exists,3 all of the cause situation, In the instant appear complaint.4 the not in minimal standard. Com- complaints three meet the the along ultimate his with plainant factual data includes obscenity. pictures the are He conclusion of states clearly genitalia most area nudes with seminudes suggests to exposed. be dominant theme He this they have that in estimation and states his Although complaint third literary value. no or social adopted practice attaching actual the commendable alleged magazines, re- coрies there of the obscene is no alleged quirement attached to literature be obscene complaint in order it sufficient. render inadequate. description Police officer’s Appellant objects police lan- to much officer’s guage being “conclusory” complaint descriptions in the as concerning magazines’ alleged obscenity. Although officer’s statement are similar personally others known him have been found by juries during cоntrolling past year upon the magistrate, this statement served a common point regarding type magazines reference and as- magistrate probable-cause sisted the in his determina- tion.
In
State,5
quite
Court v.
similar
case tried
Outagamie county
in 1969 and decided
court
this
appeal
on
individual
this
held
verbaliza-
tions or
descriptions
verbalized
of obscene material are
inherently defective. The context of this statement makes
it clear that
substantiаting
court its refusal
3 Id.
Simpson
State ex
White v.
rel.
28 Wis. 2d
Police
established.
officer
Appellant argues
complaint
be-
is defective
complainant’s qualifications
exprеss an
to
cause the
opinion
obscenity
complaint.
on
in the
are
established
County
He
State ex rel.
cites
v.
re-
as
Pflanz
quiring
qualifications
complaint.
of
such
in the
statement
Pflanz,
highly
however,
involved a
area —in-
technical
come tax
obscenity
fraud.
the area
has
In
of
this court
repeatedly
acknowledge
to
necessity
refused
ex-
of
pertise.7 The
upon by
Giordenello Case relied
defendant
distinguishable.
complaint
is also
posses-
The
in a heroin
sion conviction
did
.
stated
receive
. .
“[defendant]
complainant
heroin.”
There were no
stated
facts
alleging personal knowledge
any
indication of
source
his
of
belief that
the substance was heroin. The
supreme court held there to be insufficient
facts stated
ground
finding
a
probable
cause. Giordenello is
point
on
complainant
herein
as
did
the source
state
belief and that
him
his
such source
was known
light
be reliable.
In
rеgard
this court’s refusal
expert testimony
obscenity
essential to an
determination,
police
undoubtedly
detective is
prurient
as versed in
community
interests,
literary
standards
or social
any
nonexpert.
values
other
6 (1967),
550, 559,
36 Wis. 2d
153 N. W. 2d
Pflanz
peculiar
Case has also been confined to its
factual
context
Seraphim,
ex
State
rel. Evanow
supra,
(1971),
v. Amato
State
49 Wis. 2d
Described are law, as matter
“Not Obscene.” Appellant argues magazines that these cannot be found only nudity depicted obscene because is not sexual supra, State, 5, page v. footnote at 691. 10 (D. 1965), Supp. 160; C. Iowa 243 Fed. reversеd other on grounds, (8th Luros 1968), v. United 200, States Cir. 389 Fed. 2d denied, certiorari 382 U. S. L. Ed. 2d 361. page Id. at 12 E.g., State, supra, Court v. argues activity. nonobscenity nonsexuality, Given for appellant, complaints are not because these sufficient they activity. allege depictions do sexual Supportive proposition, appellant of his are asserts, sev- “Redrup language eral reversals” and certain in State v. suggestive necessity Amato,13 which of sexual activity. language way requires The Amato in no sexual activity stating By for an determination. magazines “[w]e think the here involved are more than photographs a collection of of nude men and women suggest activity,” merely sexual this court was differentiating magazines under consideration from certain contained cases cited de- therein. fendant 15resoundingly rejected This court in Court State presented contention therein this is bound regarding in other decisions courts whether similar magazines are obscene not: subjective “. . . The nature of the as material well subjective respective conduct of the re- defendants quires analysis an individual in each case. . .”. argument “Redrup Defendant’s that reversals” cited court make these obscene as is, matter of law therefore, I, erroneous. In State Av. *8 II,16 Woman — Part held to there be reasonable to believe a cause film obscene where is reasonable men argue, appellant, could differ. To these as that does argue are not as a matter of law is to finding that reasonable men could differ in non- activity portrayed. where sexual is We disagree with this assertion.
13 Supra, footnote 7. 14 page Id. at 642. 15 Supra, page at 16 102, 110, (1971), 53 191 Wis. N. 2d 897. 2d W. 36 identify particular required, complaints to
Not in these magazines. likely group or to receive intended complaints argues de- that each of is the identify particular re- the ficient it does not bеcause cipient group is the is directed. to which material There requirement the that it contended no such is unless prurient alleged appealed the in- to obscene materials group. specially recipient The case of a identified terest by appellant York of Mishkin v. support cited the New give contention that the failed state his proper to him to of the “intended notice the nature group” probable recipient the Mishkin, wеre to be In the United States assessed.. Supreme Court stated: designed primarily “Where material is dis- for clearly group,
seminated defined deviant sexual public large, prurient-appeal rather than the re- quirement of Roth test if the is satisfied dominant appeals theme of material whole taken as a prurient group.” interest in sex that members of (Emphasis supplied.) require short, In Mishkin does not such identification of probable recipient group except an intended and it where clearly group. is a identified deviant “deviant This group” concept uniformly of Mishkin has been inter- preted exception prurient-appeal anas to the Roth test. Ewing,19 by appellant, Thus, in United States v. cited Appeals Tenth Circuit Court of stated: teachings merely “. . . The of Roth and Mishkin re- quire government (1) demonstrate such cases designed degree are materials show part sexual arousal interest on the of the deviant and (2) jury, when suсh interest is evaluated it 17 (1966), U. S. L. Ed. 2d 56. Id. at 19 (10th 1971), Cir. 445 Fed. 2d 945.
37 apply- morbid, and after is found them be shameful community ing a whole.” national standards 20 (Emphasis supplied.) similarly Maryland Appeals A recent case has interpreted exception Mishkin an rather statement as general than the rule. . no in “. . There was evidence case to indicate Mishkin, ‘designed
that, primarily under for or it was clearly-defined group.’ disseminated to a deviant sexual prurience must, therefore, We measure in of its terms 21 appeal average person.” to the support cites United in States v. Klaw position. does, Klaw proof his dicta, in state prurient response important espe- stimulation and — cially important where “there are and characters cults exaggerated high heels, patent black bind- leather ings bondage poses significance.” and have some occult The thrust of Klaw decision, however, entire deals “bondage genre” average with the man. We conclude that there group where is no such deviant prurient appeal involved, judged must be aver- age according man and complaints his standard. The here failing were notify appel- insufficient probable lant of intended and recipient group, since clearly no defined deviant group sexual was involved.
Complaints adequately allege element scienter. complaints three all state the defendant did “feloniously intentionally sell obscene or indecent magazines.” language This court considered similar 947, pages Id. App. State 11 Md. Woodruff Atl. 2d 436. 22 (2d 1965), Cir. 350 Fed. 2d 155. Id. at *10 language fol- as that approved complaint and the Court lows: intentionally,’ used ‘feloniously and phrase, “. . . The statutory definition, consti- complaint, the under the
in tutes allegation element of of an scienter. a sufficient complaint not insufficient.” was The upon the distinguish cases attempts the to he Thus, example, for of dissimilarities. basis factual such further considerations that in Court several *11 given previously approved by here in has been this court Notwithstanding appel- Court v. State.26 approval, this urges adopt position lant court propounded this the in Massachusetts,27 Memoirs v. which held: proscribed “. . A cannot it . book be found unless is utterly redeeming to be without value. so social This is though possess requisite even the book found to the is prurient appeal patently Each and tо be offensive. of applied the three federal constitutional criteria independently; to be is the social value the book can neither of against weighed by prurient appeal be nor canceled its patent or (Emphasis appellant’s.) offensiveness.” appellant also that the trial contends be- erred proffered separate cause it three definitions distinct jury. of In the addition the standard Roth of the obscenity, definition that record indicates the gave following trial court alternative definitions obscenity: “Obscenity signifying has been also defined as morality
form of impurity which relation has to sexual “ 26 Supra, 5, ‘Material that describes or represents sex in various is if not its forms social or literary importance outweighs prurient or values or aspects quality sig If offensive it. the material has a overhearing literary may or nificant social it value not he merely community found to it be obsсene because offends standards ” appeals prurient or interests.’ 383 U. S. 16 L. 2d Ed. thoughts. It tendency to incite lustful and which has which has substantial defined material also has been as by or corrupt its viewers tendency deprave or readers arousing thoughts desires. inciting or lustful lascivious obscenity, in terms “An alternative definition given material which been as pornography, hard-core has morbid, upon sexual, predominantly what is focuses any or grossly perverse without artistic аnd bizarre justification. . purpose or . scientific definition the first alternative It noted that should be to the alternative proffered court is identical the trial v. approved State.28 instruction was pointed Court, alternative instruction As out this was companion Roth’s Alberts Cali- case, taken from fornia,29 court noted that while alternative This elements, encompass all Roth instruction did of the “they are explicitly forth in the set elsewhere instruc- tions, jury and the could nоt have been misled prejudiced by single defendant fact that the sentence encompass referred all to did of the elements.” pointed court further out in the This Court decision that jury instructions “taken a whole make it clear jury to be bound Roth test . .” . . adequately Perusal of this record indicates that *12 unequivocally trial court made it jury clear to that the they were to bound the Roth three elements order obscenity. find
Scienter. the As the element of scientеr, trial court instructed jury the as follows: 28 Supra, 5, page at footnote 701. 29 476, Sup. 1304, 354 U. S. 77 Ct. 1 L. Ed. 2d 1498. State, supra, 5, pages footnote 701, at 702. page Id. at selling may guilty found “Before the defendant be
any prove, obscene material the state must evidence you beyond doubt, that which reasonable satisfies intentionally obscene defendant did that the or indecent.” sell lewd, here evidence were Appellant argues inadequate instruction that this Screws v. United that such error is reversible within Although substantially States.32 contention the same Court, rejected was made in contention, stating: majority .“. . The of this court that concludes
interpretation this instruction would be used fendant be jury word, ‘intentionally,’ place upon that reasonable would it therein carries with connotation that de- required knowledge to have conduct of those facts necessary to make his criminal.” No notify court to instruction to failure of defense of given.
be
Althоugh
appellant
contends
defense
prior
closing
informed,
argument,
of the instruc-
given,
tion which would be
the record
otherwise.
shows
minutely
trial court
and defense counsel
discussed
appellant’s
proposed
and the trial court’s
instructions.
The trial court
indicated
defense counsel:
going
substantially
“I am
my
to follow
instructions
you
objections.
I
raise
If
find in the course of
my
something ought
review of them that
to be deleted
changed
it;
I
they
will do
otherwise
will be sub-
stantially thе same.”
The trial court should advise counsel what instructions
given prior
delivery
will be
to their
jury
and before
32 (1945),
107,
325 U.
S.
trial statement court’s grounded “general not sufficient —was instructions” was actually his based upon the fact that the defense counsel theory closing argument upon a of defense which preju rejected ignored. There actual trial court was rights. Ross also in dice to defendant’s So substantial ap States,36 it the refusal must v. United held that was closing actually pear to affect the content counsel’s argument. response here to defense
Even if the trial court’s inadequate, do not consider request and we was counsel’s any actual record disclose be, it here fails to so argued along appellant lines prejudice. Counsel for fact, were, Rоth elements what of actually upon. instructed
Verdict. argues the form the verdict misleading constituted a verdict directed on ele- Appellant, however, ments and scienter. object form of this trial, did verdict at the nor request he on did review the form of verdict therefore, motion for a new has, trial. He waived objection.37 Project American Bar Association on Minimum Standards Justice, Relating Jury, page
for Criminal Standards to Trial 4.6(c), Approved Draft, 1968; sec. 18 USCA Cr. Fed. Rules Proe., Rule 80. 35 (9th 1964), 339 Cir. Fed. 2d 578. 36 (6th 1950), Cir. 180 Fed. 2d 160. (1970), Schwamb v. 666; State 46 Wis. 2d N. 173 W. 2d Beek v. Van 2d 31 Wis. State N. W. 2d 873.
43 publications Are a matter 5. these of law?
According majority holding in Court v. this court’s State,38 obscenity . . determination of factual mat- The is following
ter to be a finder fact con- resolved of subject appellate stitutional guidelines, an review merely court which whether the evi- seeks determine underpinning dence the verdict in of view sufficient the record as a whole.” jury are supported We satisfied that the verdict here is by substantial evidence.
By Judgments and orders affirmed. Court. — (concurring). obscenity J. On of matters Wilkie, my questions involved, where constitutional fact are it is Supreme view that decisions the United States require court, making appellate still re- this its view of the trial court’s determination an herein, to make independent magazines determination of whether the are obscene.1
Since State,2 decided Court v. the United Supreme States Court reversed this court’s rul ing Kois,3 doing in State v. independent in so made аn review of trial obscenity. court’s determination of my judgment,
In making after independent an such here, question review there is no but what each question nothing four Each is obscene. compilation more than a photographs nudes genitalia of both seminudes sexes promi- with area 38 Supra, 5, pages 697, 1 my concurring opinion See (1971), Court v. State 51 Wis. 683, 711,188 2d 2d N. W. 2 Supra, footnote 1. 3 (1971), 668, 2dWis. 188 W. 2d N. reversed sub nom. Kois v. Wisconsin U. S. Ed. 2d L. 312. See Wis. 2d 512. pro- nently persons are in displayed. photographеd only appeal their positions, so that vocative and seductive prurient is to the interests of reader. The literary socially having any pretense or re- make no community deeming They value. offend the standards locally nationally.4 whether considered *15 Wuorinen, Guardian, others, General and Plaintiffs and
Appellants, Farm Automobile v. State Mutual Company others, and and Insurance Defendants Appellants: State, Intervening Re- and Defendant spondent. No. [Case 159.] Appellant, Felice, another, Plaintiff and v. Semenok and Appellants: Intervening Defendants De State, and Respondent. fendant and No. [Case 160.] litem, another, ad Kroening, by Guardian and Plaintiffs Heritage Appellants, and Mutual Insurance Company Appellants: others, and Defendants Intervening Respondent. State, Defendant No. [Case 161.] Argued
Nos. 159-161. October 1972. Decided October (Also reported 521.) in 201 N. W. 2d my concurring opinion See Orito v. State 55 Wis. 161, 167, 168, 2d 2d 197 N. W. notes only” sign on “21 being stapled shut, the the books as Court deci- mentiоned. The like, the were and door, the persua- however, these facts as it mentioned when sion, discussing concept the of issue, was sive on scienter the preliminary the hearing, not at at probable cause the stage prosecution. complaint of a criminal required identify nature the the state to the Was of probable recipient group” to which these and “intended magazines directed and evidence the were adduce group that at trial? nature of obliged give state was to notice to the the not Since appellant probable nature the as “intended and group” recipient it that at the follows trial the did state any need to evidence adduce as to nature of that group. the introduction 3. Was into evi- dence, evidence, prove without their further sufficient obscenity beyond a reasonable doubt? repeatedly court has held that This concept require exрert testimony.23 elusive so nothing any here There is that warrants further con- question evidence, the form sideration clearly themselves, sufficient obscenity beyond a prove reasonable doubt. State, supra, v. footnote Amato, supra, State, supra, Court v. 7; v. State footnote Kois, supra, State 5; footnote 7. properly jury? instruct 4. Did trial court previously in the As case same noted, was tried this judge by Court. presiding court as was same instructions, appel- The trial court’s here attacked lant, approved by are identical those Court v. State. obscenity. Definitions of acknowledges appellant jury instruction