161 Cal.App.2d Supp. 860, 3792, People v. Smith

Docket Nº:3792
Citation:161 Cal.App.2d Supp. 860, 327 P.2d 636
Party Name:People v. Smith
Case Date:June 23, 1958
Court:Superior Court of California
 
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Page 860

161 Cal.App.2d Supp. 860

327 P.2d 636

THE PEOPLE, Respondent,

v.

ELEAZAR SMITH, Appellant.

Civ. A. No. 3792.

Superior Court of California, Appellate Division, Los Angeles.

June 23, 1958

Page 861

COUNSEL

Brock, Easton, Fleishman &amp Rykoff for Appellant. Roger Arnebergh, City Attorney (Los Angeles), Philip E. Grey, Assistant City Attorney, and William E. Doran, Deputy City Attorney, for Respondent

OPINION

DAVID, J.

The defendant Smith appeals from a judgment based upon his conviction under Los Angeles Municipal Code, (Ordinance No. 77,000 as amended) pursuant to the complaint which charged that he violated paragraph 2 of section 41.01.1 thereof, in that he "did wilfully and unlawfully ... have in his possession an obscene and indecent writing, book, pamphlet, picture, photograph and drawing, to wit: Sweeter Than Life, in a place of business where magazines, books, pamphlets, papers and pictures were sold and kept for sale."

The ordinance provisions in question read in part as follows: "Sec. 41.01.1 Indecent Writings, Etc.--Possession Prohibited: "It shall be unlawful for any person to have in his possession any obscene or indecent writing, book, pamphlet, picture, photograph, drawing, ... in any of the following places:

"1. In any school, school-grounds, public park or playground

Page 862

or in any public place, grounds, street or way within 300 yards of any school, park or playground;

"2. In any place of business where ice-cream, soft drinks, candy, food, school supplies, magazines, books, pamphlets, papers, pictures or postcards are sold or kept for sale;

"3. In any toilet or restroom open to the public;

"4. In any pool room or billiard parlor, or in any place where alcoholic liquor is sold or offered for sale to the public;

* * *"

Appellant's contentions cannot be sustained:

(1) The ordinance does not violate the First Amendment of the United States Constitution. Under the California Penal Code, section 311, dealing with obscenity, the United States Supreme Court has held that "obscenity is not within the area of constitutionally protected speech or press." (Roth v. United States (1957), 354 U.S. 476 at 485 [77 S.Ct. 1304, 1 L.Ed.2d 1498].)

(2) The characterization as "obscene" is not too indefinite to constitute a valid standard. In the case last cited, the trial judge applied the test laid down in People v. Wepplo (1947), 78 Cal.App.2d Supp. 959 , which was approved by the U.S. Supreme Court in the Roth case (354 U.S. at 489).

(3) Under any test, the book concerned in this prosecution was properly held to be obscene by the trial court, and we share such a conclusion upon our independent view of the evidence, if that be necessary in view of the assertion of constitutional right, though such a right is clearly nonexistent. (Roth v. United States (1957), 354 U.S. 476, 485-486 [77 S.Ct. 1304, 1 L.Ed.2d 1498].) Obscenity is not constitutionally protected. The "community standard" is, as in other criminal matters, to be determined by the trier of the fact. (Parmelee v. United States (1940), 113 F.2d 729, 741.)

The police power of the state in such matters is not restrained by the definitions applied by the federal courts to the federal question of admission of books to the country or to the mails. A national common- denominator of morality may be considerably less than that in a state, which has the right to set, and to adhere to, its own standards in such matters. (U.S. Const., Amend. X.) That any obscene book or picture may be popular is no ground for holding that it may not be suppressed, since that condition may be exactly the occasion for legislative action against it to protect the public morals. Such legislation preeminently falls within

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state police power. (Lawton v. Steele (1893), 152 U.S. 133 [14 S.Ct. 499, 38 L.Ed. 385].)

We reach this conclusion, also, when we have considered the book as a whole, under tests that the appellant contends are applicable. There are obvious common-sense limits to the "over all" view. We are not persuaded that a bawdy house is any the less a brothel, because many of the rooms of the house may be occupied with dining and dancing, in view of what goes on in the bedrooms. A book is not necessarily clean or not obscene because some of the chapters or paragraphs leading to the bedroom, couch, summerhouse or other available place themselves do not describe the details of adulterous fornication nor rape. (Cf. Besig v. United States (1953), 208 F.2d 142, 146.)

(4) The defendant offered expert witnesses to testify what psychological effect the prurient material in question would have on a normal average person. In California, this is no more the subject of expert testimony than what the conduct of a reasonable and prudent person would be in a negligence action. This is for the trier of the fact. (People v. Wepplo, supra, 78 Cal.App.2d Supp. 959; cf. United States v. Kennerley (1913), 209 F. 119, 121). Nor...

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