*1 454 May 18,
Argued 1966 and remanded reversed March v. WATSON OREGON STATE OF 414 P. Ellis, Portland, Barnes H. Meyer R.
Paul them on With appellant. for the cause argued Portland. R. Neil, briefs was Carl Thomas, District Attorney, Robert Special Deputy Clancy, J. Cali James Valley, Sun Palls, Klamath *2 Thomas cause for With respondent. argued fornia, District A. McKeen, Attorney, were Sam on the brief District Lewis, Deputy Attorney, D. Harry and Falls. Klamath Justice, Chief
Before and Perry, McAllister, Jus- Holman Denecke, Schwab, Sloan, Goodwin, tices.
GOODWIN, J. a from of fine of judgment Defendant appeals ORS 167.151 ‹ (disseminat for violating imposed $100 matter). obscene ing ‹ ORS knowingly “(1) person shall 167.151. No disseminate person A disseminates obscene matter if matter. he
obscene agrees provides, sells, or exhibits, hibit, sell, delivers or offers or to ex possession provide, has in or or in deliver with any provide exhibit, sell, writing, deliver or obscene tent to picture, device, record, repre picture, material or other motion of the obscene. sentation or embodiment (1) section, “(2) of this As used if, subsection matter predominate whole, appeals as a its theme considered obscene goes patently prurient and if it is offensive and interest sub- to stantially describing beyond customary of candor in limits or ordinary persons. representing matter reference to such with any prosecution section, “(3) this In for an offense under admissible, as relevant to a determination of shall be evidence predominant appeals of the matter or not theme to whether prurient interest, artistic, literary, scientific or educa- show merit of the matter. tional any “(4) prosecution section, for a of shall violation this it knowledge prove advertising, issue on the of be relevant handling labeling matter, promotion, publicity, including any magazine. or of the method of any on or or statement the cover back book $ »'
(($ $ $ $ appeal, comprehensive In this defendant an- seeks swers to a number of state and federal constitutional questions we which do not reach. must We reverse receiving opinion conviction because of error evidence. publication
A is not obscene state unless the (a) establishes that: the dominant theme of the mate prurient appeals rial taken as a whole interest in (b) patently sex; the material is offensive because it contemporary community relating affronts standards description representation to the or of sexual matters; (e) utterly redeeming the material without social Massachusetts, value. Memoirs v. 383 US 86 Ct Ed S 16 L may deciding,
We without assume, that a book might (a) be on so bad as to demonstrate its face its (b) patent (c) dominant its theme, offensiveness, and “redeeming its utter lack of social value.” The state *3 rely upon ipsa in this however, did not case, res loquitur. prosecution The an called as witness attorney county. the then incumbent district of the personally purchased signed He had book and the had complaint. attorney permitted the The district testify, timely objection, opinion over in that his the question statutory requirements book in satisfied all (as requirements interpreted light those must be Roth of v. States, United 354 476, US 77 S Ct 1304, (1957), subsequent 1 L Ed 2d and 1498 decisions of Supreme Court.) › the United States › ORS (3) presence reads as 167.151 if the of merit is defense, Supreme an affirmative but the States United Court protection has held that the of and the First Fourteenth Amend government applies printing prove ments to all unless the can requirements that it meets the three enumerated in v. Memoirs supra. Massachusetts, The burden thus rests the state necessary obscenity. prove all the elements of
457 permit who a witness, error to It manifest testify, to tell the qualification special so to has no committed. jury crime had been that in his of relevant he knew little witness revealed The standards fi virtually community contemporary and (Since contemporary 1939 or nothing literature. of pro outside no books admitted, he had read he 1940, religious Digest, only Readers’ the field, fessional periodicals papers, Further, fields. in other and news chapters beyond first two the he had not read he said question.) of the book in say that the introduction we unable to
Since are unquali- patently from a of so-called judg- prejudice defendant, did not fied witness ment cannot stand. may again,
Finally, we be tried since the case assignments challenging the in of error notice those validity pass upon the of We need not structions. at because recent time, each of instructions this Supreme Court have of the decisions United States given The instructions below rendered them obsolete. apparently upon the trial court’s under were based supra. standing States, Roth v. That de of United by part qualified Memoirs v. Massa has been cision supra. case law in this field has been chusetts, Earlier theory by pandering expanded outlined in further L York, 86 S 958, 16 Mishkin v. New 383US Ct Ed Ginzburg (1966), States, v. United 383 US (1966). L 2d It is not Ed neces 942, 16 86 S Ct speculate upon implications sary time to at this they may apply 167.151 decisions as ORS these and remanded. Eeversed *4 fi Enterprises Day, 1432, v. 370 US 82 S Ct Manual See Ed 2d 639 holding “community (1962), relevant that the 8 L federal statute is a national standard under the
standard” decency. AL.R3d 1182-1185 also Annotation in 5 See dissenting.
PERRY, J., agree majority I am unable the to with that this They case should be reversed. reverse case the because receiving purported expert testimony. in of error attorney purchased The district who had the book that testified in the book as a “taken whole predominant appeals prurient a that to has theme interests.” He admitted he never the had read book in entirety. its he could not know the Therefore, whole permitted book and should not have been state his opinion. sufficiently error
However, I do not believe this prejudicial my opinion, to warrant reversal. ex- pert testimony jury in this field is not desirable. The prurient jurors is instructed as to interests and judge writing on basis of should the issue it- given. attorney The self under the district instruction testify expert that he was an on did not merit. It in this field where “social value” becomes an fact issue of becomes admissible. Testimony Expert Obscenity The Note: Use of Liti- gation, p L Nev at 126. 1965 Wis book was
The itself introduced into evidence and jury. my knowledge To I never read to have read pornography. which was more dedicated to book The 'having juror book been introduced into each evidence, predominant without a shadow of doubt that knew entirety appeal was in theme of the book its an prurient interests. majority rely state that the State
The “did not ipsa loquitur.” It seems clear me res that to utterly lacking establish the book redeem- they ing social value must have done so for no *5 my opinion, expressed In this issue. was necessary. testimony no anyone, expert know or do I believe I not nor do locating capable exact boundaries otherwise, presume, I term “social value.” of that indefinable acceptable presently standards, rise under however, writing must term, above the lowest scale of tending way to stimulate in some be considered as intellectually, entertain teach him, mind reader of its literary style. possess him a or moral, single possess a one of these does not This book Literarily qualities. of a manure it has the effluvium pile. no educates no stimulates moral, one, It teaches only perversion, extra-marital sexual drive only a moron. could entertain my opinion, neither critic nor the successfully argue any average could there is man Pad.” social value in “Lust speaks for itself. No
This book purpose pure required where the obvious should be pornography. judgment. affirm the
I would