*1 dissent, Liability Employers’ in Federal filed a cases Justice Frankfurter Act again says imply for court that that Court seems to which he criticizes the granting question, cases to “that in F.E.L.A. as to the certiorari least points causation, out that element of review facts. Hе not whether Ap- Court, Ohio Court evidence is convince a rea- Ohio Trial sufficient to soning man, Supreme had peals Court and the Ohio but whether there is case, passed justify latter unanimous- on the scintilla of evidence at all to sufficiency jury difficulty ly; issue was verdicts.” There applied He adds: when that test is to the case at the evidence on causation. bar, case, us agreeing the record before reveals because “In to take the that there is not a employer’s negligence of evidence of merely scintilla- natural accedes Court as an element plaintiff to unsuccessful of an desire injury. plaintiff’s guess causation Hence whether one more complete probative there is enough absence facts on were there supрort facts to by reached the conclusion do its jury allowed to be should majority opinion case. in this guessing.” rehearing. granting I favor the further adds: He appeal from such is no “There GRUBB, deny Judge, District votes to by judicial this discretion abuse rehearing. petition Court.” dissеnt, filed a Mr. Burton Justice agreeing Supreme Court Ohio with the stating: " * * * petition- I believe that caused, ‘in injuries were not er’s possible in- part,’ or in whole lighting.” adequacy of the Mr. Justice Harlan and Justice Mr. given for the reason dissented Whittaker Rogers Mis v. Harlan in Mr. Justice Appellant, VOLANSKI, Steve Co., 77 S. Pacific R. U.S. souri 1 L.Ed.2d Ct. America, UNITED STATES of Schnackenberg emphasized Judge Appellee. plaintiff testified instant No. 12968. slipped.” In “My must have foot Appeals United States Court of plaintiff im- McBride, he testified Circuit. Sixth agined the soles snow there June his shoes. position Bowing taken the extreme Court, Supreme I majority of the by a reached decision convinced am panel in case is this majority of the voting therefore, am, correct, I rehearing. petition for deny the Judge.
SCHNACKENBERG, Circuit Duffy Mr. Justice Har- Judge relies Ferguson languаge dissenting
lan’s Lines, 352 U.S. Moore-McCormack 1 L.Ed.2d 563, 77 S.Ct. justice decisions refers to the
where Court United *2 Meltzer,
Michael A. Picciano and Alan Ohio, Cleveland, appellant. Carroll, Cleveland, (Sum- James Ohio Canary, ner Cleveland, Ohio, on the brief), appellee. MARTIN, Before MILLER Judges.
STEWART, Circuit
STEWART,
Judge.
Circuit
appeal
judgment
This is an
from a
conviction
appellant
and sentence of
years’
imprisonment
three
under an
charging
knowingly
indictment
that he
took, accepted and received from an ex-
press company
Cleveland,
Ohio, a
shipment
Baltimоre,
from
Maryland, of
containing
three
cartons
numerous
twelve-set, lewd, obscene and lascivious
pictures
in violation of Section
Title 18 U.S.C.A. The case
was tried
judge
the district
without intervention of
jury.
pictures
Each set of the
photographs
consists of twelvе
young
poses
woman in various
stages
various
of undress.
In none of
subject totally
the frontal views is the
unclothed below her waist.
In some of
posterior
photo-
views she is. The
graphs
are without
even tenuous
pretensions to artistic or scientific merit.
They
unaccompanied by any
text.
Although
poses
some of the
are rather
bizarre,
subject
engaged
is shown
any
activity.
indecent
immoral
Despite
objection
appellant’s
psychiatrist
permitted
counsel
was
trial
state
his
as to the
effect that the
would have
sadists, masochists,
types
and other
deviates,
sexual
and also to
his
state
expert opinion
upon juve-
undesirable effect
niles. That the court’s decision was based
large part
on this evidence is re-
judge’s
opinion.1
vealed
oral
judge
examрle,
imaginations
the district
For
said:
for stimulation
peo
poor,
perverts,
People
pervert
about
weak-minded
doesn’t
“What
it?
ple
perverted
the stimulus and do not
ed
got
who have
minds and
tendencies who
reject acting
power
have the will
their dollar’s worth out of this sort
*
**
gets
dirty picture.
to a
almost
down
business
it? This
What about
Incorporated Olesen, Cir., 1957,
The admission of this evidence
prejudicial
Obscenity
not
picture
F.2d
error.
“A
to be
pos
be measured
the reactions of
banned as obscene
because of
*3
particular
popula
group
average
effect,
upon
class or
of the
sible
the
citizen
tion,
by
only upon
irresponsible,
com but
the
standard
the
im
the
munity
mature,
sensually
Perhaps
as a
the best
or
whole.
the
minded.”
Maryland
field
known American decisiоn in this
State Board of Motion Picture
1957,
of law
Book
Corp.,
is
One
Censors
United States v.
v. Times Film
“Ulysses,”
1934,
Cir.,
212
454,
833,
Entitled
F.2d
2
72
Md.
is
129 A.2d
“It
837.
affirming
705,
1933,
D.C.S.D.N.Y.,
F.
5
believed that the
the
cases establish that
Supp.
Judge Woolsey’s
community’
182. District
‘standard of the
has been
admirably
in
the
that case
states
substituted for the ‘standard
the weak
of
obscenity.
susceptible’,
correct test of
be
and
must
What
at
is
least where there
person
measured is
with
evidence of
“its effect on a
to the latter.”
sales
average
1940, App.
sex
States,
the French Parmelee v.
instincts—what
United
72
moyen
203,
729,
would
739,
call l’homme
D.C.
sensuel—who
113 F.2d
footnote
5,
plays,
legal
dissenting
inquiry,
opinion by
in
Vinson,
this branch of
J.
reagent
hypothetical
the
tempered
same role of
“[T]he
law is not
to the
minority
society.” Besig
does the ‘reasonable man’ in
law of hardened
the
of
v.
States,
142,
Cir.,
torts and
United
1953,
‘the man learned in the art’
9
208 F.2d
questions
patent
See, also,
Levine,
of
145.
invention in
law.”
United
v.
States
F.Supp.
Cir.,
1936,
156;
5
2
184. “It
the
is
with
83 F.2d
Burstein
person
States, Cir.,
normal
1949,
is concerned.” United
law
9
F.2d 665.
178
F.Supp.
5
185.
danger
of a standard that would
generally accepted
by
This now
test measure what
is
its effеct
obscene
by upon
by
people
seems to have been
advanced
first
abnormal
is illustrated
Hand,
judge,
testimony
Learned
psychiatrist
then a district
the
of
in
said,
thought
present
put
when he
leash
“To
in
case. He testified that some
average
“gain
pеople
particular
by
of the time is
conscience
stimuli”
look-
perhaps
ing
tolerable,
by
foot,
others,
but to
fetter it
the female
and that
“may get
ca-
by
necessities
pable
the lowest and least
aroused sexual desires”
see-
ing
policy.”
clothing
seems a fatal
United
an article of women’s
Kennerley, D.C.S.D.N.Y., 1913,
department
States v.
the window of a
store.
119,
209 F.
question
Without
in this
years
vulgar
other courts have
recent
are at best
trash. Without
variety
appellant’s
postulated
this standard
a
motives
“
purveying
ignoble.
test is not
forms.
‘The
whether
them
verbal
were
This
availability
sexual desires or sex-
court is
it would arouse
aware that
thoughts
compris-
juveniles
ually impure
publications
in those
thought
segment
ing
particular
delinquent
of the com-
a
contribute
con-
young,
munity,
deep
duct
is
the immature or the
a matter of
concern to
* * *
many.
words,
highly prudish.
If
In other
the causal effect of
ma-
such
impact
upon juvenile
you
delinquency
its
terial
must determine
”
average
community.’
demonstrable, may
person in the
it
be assumed that
unambiguous
Roth, Cir., 1956,
specificаlly pro-
2
States
statute
United
hibiting
by
(quoting
its
footnote 1
distribution
interstate
F.2d
jury).
juveniles
commerce to
instructions
would be a valid
trial court’s
Congressional
power.
are fixed
and for the
exercise
standards
But
“Social
Congress
great majority
has not
and not
or
a
enacted
kind of
minority.” One,
law.
a
or weakened
hardened
power
poor
peo-
who
have
of control? What
half-witted kids
don’t:
about
ple
training
who
little off?”
education
doctor’s
ad,
existing
hoc,
with
islation
the standard
statute
like
Under the
Cir.,
Levine, 2
what
concerned,
care.”
measure
United States v.
we
are here
juveniles
A trial
F.2d
effect
obscene
present critical
Constitu-
can best
formidable
determine “the
encounter
of point
compromise
candor
v. State
between
In Butler
tional barrier.
may
cоmmunity
S.Ct.
Michigan,
and shame
352 U.S.
at which
A
524, 526,
here and now.”
1 L.Ed.2d
arrived
court,
law
particularly
aid
a state
with the
Court held unconstitutional
average
general
jury,
forbidding
distribu-
can
“the
sale
best determine
containing
publications
obscene
tion
conscience of the time.” Unitеd
*4
1913,
language
in-
209 F.
pictures
Kennerley,
tended to
that
D.C.S.D.N.Y.
119,
or to cor-
immoral
to
acts
cite minors
rupt
“We have
Court said:
them. The
searching
We do
reach
Con-
not
the
reasonably
legislation
re-
not
before us
exhaustively
questions
stitutional
plored by
so
ex-
said
еvil
which it is
stricted
the
with
to
Judge
Frank, con-
the late
enact-
this
to
incidence of
deal. The
curring
Cir.,
Roth, 2
in United States v.
population
ment is to reduce the adult
grant-
1956,
796, 801,
237 F.2d
certiorari
Michigan
reading only
fit
what is
of
ed, 1957,
361,
352
1
U.S.
77 S.Ct.
arbitrarily
thereby
for
It
children.
L.Ed.2d 319.
of
in-
the
curtails one of thosе liberties
judgment
The
is set
and
case
aside
dividual,
Due Proc-
in the
now enshrined
is remanded
a
for
new trial.
Amend-
ess
the Fourteenth
Clause of
history
ment,
as
has attested
MARTIN,
Judge (dissenting).
Circuit
indispensable
mainte-
conditions for the
my view, expressed
In
in conference
society.”
progress
nance
of a free
and
proposed opinion
and in a
before the
judg
For the reasons stated
majority opinion
judg-
written,
set aside.
ment of conviction must be
ment of conviction and sentence in this
majority
court,
hold
A
of the
unable
case should be reversed and the case
proper
as a
law that
matter of
dismissed.
It is true that the trial court
obscene,
pictures
be
test
are not
admitting
erred in
testimony
of a
lieve
should be remanded
the case
psychiatrist concerning the
these
еffect
district
for a new
28 U.S.
trial.
pictures
have,
only
would
on normal
Bryan
States,
2106;
C.A.
1950,
v. United
§
338
males
perverts,
but
on
also
sexual
such
94 L.Ed.
U.S.
70 S.Ct.
as
masochists,
sadists and
and on
youth;
adolescent
and that the correct
applicable
viewing
is
test
what effect
opinion
The
in
is
оur
pictures like
in
those
evidence
would
here
peculiarly
prius
best
for nisi
left
people.
normal-minded
See
determination, preferably
jury.
a
“
Judge
* -* *
of
Learned
Hand United
problem to find a
is
[T]he
Levine, Cir.,
The the Butler Rehearing Aug. 6, Denied analogy true here. My opinion is as not to be construed
placing approval upon the distribution pictures,
of lascivious literature or limited to the facts encountered case, which, my judgment, instant showing inadequate constitute appellant subject should be
criminal sanctions of the federal stat- indicted,
ute under he was tried by me,
and convicted. a case tried jury,
without the intervention of a while sitting in the United States District Pittsburgh, I convicted and sen-
Court at punishment limit a distributor
tenced lewd, pictures. obscene and lascivious But in the Saxton].
[United classify case, I cannot so
instant
photographs exhibited in evidence. good posi-
judges of this court are