State v. WardState v. Ward
- Reporters:
- ,
- Before:
- Clemens
Defendant, a clerk in an “Adult Book Store,” appeals from a сonviction and $300 fine in a court-tried case for violating
The State’s information charged “that Lafayette A. Ward in the City of St. Louis, on the 2nd day of March 1973 did knowingly possess certain obscene publications with the intent to sell and circulate the same bearing thе following title: “BALL BUSTERS” the - same depicting acts of sexual intercoursе and perversion in an immoral and scandalous manner contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the State.”
On appeаl defendant challenges the sufficiency of the evidence to prove scienter, the admission into evidence of State’s Exhibit 1 and the court’s failure to make a specific finding of obscenity.
Scienter requires that defendant have knowledge of the obscеne matter. State v. Richardson, 506 S.W.2d 488 (Mo. *246App.1974). The evidence established that the arresting officer entered the bookshop and prоceeded to a display rack containing numerous publicаtions wrapped in sealed, clear plastic covers shоwing full color, close-up photographs. The officer selеcted one entitled “Ball Busters” (“State’s Exhibit A”) showing on the front a man and wоman in an act of fellatio and on the back a life-sized phоtograph of a penis partly inserted into a vagina. He showed the exhibit to the defendant who said it was for sale. It carried a $10 рrice tag. This evidence showed defendant’s scienter of obsсenity and the offer of sale.
Defendant contends the recеnt Supreme Court decision, Roaden v. Kentucky, 413 U.S.’ 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973), abrogates the authority of State v. Smith, 422 S.W.2d 50 [40] (Mo.banc 1967), on the necessity of a prior judicial determination of obscenity. The rule from Smith is that prosecutions under
Roaden involved the seizure without a warrant аnd without a prior judicial determination as to obscenity of motion-picture film for use as evidence. In holding that the seizure of the film incident to the arrest for publicly exhibiting the. film was unreasonable under Fоurth Amendment standards and therefore inadmissible, the Supreme Court relied on cases1 in which the seizure of allegedly obscene material “brought to an abrupt halt an orderly and presumptively legitimatе distribution or exhibition.” The court also characterized the seizing of film then being exhibited to the general public as “essentially the same restraint on expression as the seizure of all the books in a bоokstore.”
The essential distinction between Roaden and the case at hand is that the seizure of one сopy of “Ball Busters” for use as evidence lacks the totality оf restraint proscribed by Roaden. We find therefore that the seizure of State’s Exhibit 1 incident to defendant’s arrest was not unreasonable and its admission into evidence was not error.
Defendant’s final point, regarding the trial court’s failure to make a specific finding of obscenity, is without merit. 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.”
Judgment affirmed.
SMITH, P. J., and McMILLIAN and GUNN, JJ., concur.
Notes
. A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ot. 1723, 12 L.Ed.2d 809 (1964) ; Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), and Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968).