512 S.W.2d 243 | Mo. Ct. App. | 1974
Defendant, a clerk in an “Adult Book Store,” appeals from a conviction and $300 fine in a court-tried case for violating Section 563.280, RSMo 1969, V.A.M.S., which provides: “Every person who shall . offer for sale . . . any obscene . . . picture ... or other publication of indecent, immoral or scandalous character . . . shall, on conviction thereof, be fined . . .”
The state charged “that Lafayette A. Ward in the City of St. Louis, on the 20 day of March 1973 did knowingly and unlawfully sell to Detective Geders a certain obscene magazine for the sum of Ten Dollars and forty cents ($10.40); said magazine entitled Free Pussy Vol. I having photographs of men and women performing acts of sexual intercourse and sodomy, which were lewd, licentious, indecent, and lascivious contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State.”
Defendant challenges the sufficiency of the evidence to prove scienter, possession and sale of the object and the court’s failure to make a specific finding of obscenity.
The trial court need not make a specific finding of obscenity where none is requested. Rule 26.01(c), V.A.M.R., provides that “all fact issues upon which no specific findings are made shall be deemed found in accordance with the result reached.”
Defendant’s contention that the evidence is insufficient to show possession and sale of the publication is without merit. A police detective testified she entered the bookstore, selected a publication entitled “Free Pussy” (State’s Exhibit 1) from a display rack and for $10.40 bought it from defendant who was working as a sales clerk. This unrefuted testimony is sufficient to show the defendant in his role as clerk had control of the store and sold the publication.
The evidence was also sufficient to establish scienter. Although State’s Exhibit 1 was enclosed in a sealed plastic wrapper, both its covers were visible. In full color close-up photographs the front cover showed a penis discharging semen onto a woman’s face and the back cover depicted a man and woman in an act of cunnilingus. Defendant saw at least the front cover when the detective prior to purchase asked if he had any similar, unsealed publications. Scienter does require a defendant to have knowledge of the obscenity. The evidence here did show defendant knowingly sold obscene matter.
Judgment affirmed.
