State v. Kois

• Decision Date: 29 June 1971
• Docket Number: 70,Nos. 69,s. 69
• Citation: 51 Wis.2d 668,188 N.W.2d 467
• Parties: STATE of Wisconsin, Respondent, v. John R. KOIS, Appellant (two cases). State
• Court: Wisconsin Supreme Court

Page 467

188 N.W.2d 467

51 Wis.2d 668

STATE of Wisconsin, Respondent, v. John R. KOIS, Appellant (two cases).

State Nos. 69, 70.

Supreme Court of Wisconsin.

June 29, 1971.

John R. Kois, publisher of the underground newspaper 'Kaleidoscope,' was convicted of publishing obscene material in Milwaukee county in violation of sec. 944.21(1)(a), Stats. Case number 69 involved the publication of two pictures on page 17 of the May 10--23, 1968, issue which was accompanied by a news story entitled '$100,000 Photos;' case number 70 involved a poem entitled 'Sex Poem' on pages 16 and 17 of the August 9--22, 1968, issue. The cases were consolidated for trial and tried before the court, the jury having been waived. Kois was found guilty, fined $1,000, and sentenced to one year in the Green Bay Reformatory on each count, the terms to be served consecutively. Probation was then granted and stayed pending appeal. Post-conviction remedies were denied. This appeal is from the judgment of conviction and the order denying post-conviction motions.

Shellow & Shellow, Robert H. Friebert, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Jon Peter Genrich, Asst. Dist. Atty., for Milwaukee County, Milwaukee, for respondent.

HALLOWS, Chief Justice.

These are the first cases in which this court has considered alleged obscene material in a newspaper under sec. 944.21(1)(a), Stats., ¹ which makes it illegal to publish obscene material.

The pictures accompanying the news article depict a man and woman on a bed having intercourse in a sitting position. The accompanying news story states the Milwaukee police department had arrested a Kaleidoscope photographer for possession of similar pictures but not the identical pictures shown. The Sex Poem consists of a one-line string of words curving and wandering through poetry on two pages of the newspaper. The Sex Poem describes in detail the physical and emotional impact during intercourse from the standpoint of the participating male.

At the trial the state called only one witness, a police officer who offered both testimonial and circumstantial evidence of the identity of Kois, as the publisher, and of venue. The two issues of Kaleidoscope were admitted as autoptical evidence and the state rested. A motion for dismissal was denied.

The defense presented several witnesses, a professor of English, an art teacher, a lecturer in the department of journalism, an associate professor of art from the University of Wisconsin in Milwaukee, and a person who testified he purchased a magazine in the Milwaukee county courthouse on the morning of the trial which contained pictures of unclad males and females. The professor of English testified that Sex Poem did not violate community standards and was not obscene in her opinion and that the newspaper had social value. The art educator testified that photograph was a recognized form of art and the photographs did not go beyond the customary limits of candor in the representation of sex. The lecturer in journalism testified the articles in the two newspapers had redeeming social value. The associate professor of art testified photography was an art form, the pictures depicted a classical art theme and in his opinion were innocuous and inane.

The trial court concluded it was not bound by this evidence and pointed out deficiencies and the inconclusiveness in the alleged expert testimony. The court considered it was competent as the finder of the facts to determine whether the material was constitutionally obscene and held that it was, inferring that neither the pictures nor the poem had any redeeming social value. The court also held the issue of Kaleidoscope as a whole in which the pictures and poem appeared were obscene.

Kois, in his initial argument, contends the evidence is insufficient to support the finding of guilty: (1) Because it was not proved he was the publisher of Kaleidoscope and the material involved was published in Milwaukee county, and (2) there was a failure of proof because the state introduced no testimony in respect to obscenity, community standards or social value. We think the evidence is sufficient to show the defendant was the publisher of Kaleidoscope and the newspaper was published in Milwaukee county. The evidence on the issue of obscenity is not insufficient as a matter of law because there was no expert testimony on obscenity. This argument that obscenity can only be proved by expert testimony was rejected recently by this court in the case of State v. Amato (1971), 49 Wis.2d 638, 183 N.W.2d 29. While in some cases the admissibility of expert testimony on the standards defining constitutional obscenity may be helpful and while an ultimate opinion of an expert on obscenity is admissible in Wisconsin, there is no reason why obscenity or pornography can only be proved by expert testimony. See The Use of Expert Testimony in Obscenity Litigation, Whyte, 1965 Wis.L.Rev. 113. To require expert testimony would overlook the value of real or autoptical evidence and would lead in most cases to a battle of so-called experts.

Obscenity is not such an elusive concept that it takes expert witnesses to tell a jury or a judge what is the dominant theme of the material, what is the community standard, or what is the social value, or that a trial judge or an appellate court cannot find it as a matter of law or under the Roth-Memoirs test. ² These elements are not separate and independent tests but need only to coalesce to constitute the constitutional sense of obscenity.

It is claimed the trial court shifted the burden of proof to the defense because the trial court did not require expert testimony and undertook to determine the question of obscenity itself. We find no merit in this argument. This is another phase of the argument on insufficiency of the evidence.

Kois argues the complaint was insufficient and the evidence adduced at the preliminary hearing was insufficient to support findings of probable cause. This argument rests on the same foundation as his unmeritorious argument of the insufficiency of the evidence at trial. In addition, he argues that since the threat of his criminal prosecution has a chilling effect to keep alleged obscene literature from being distributed, an adversary hearing should be had prior to the issuance of the warrant for arrest. What Kois is asking for is an adversary trial in a criminal obscenity case before a person is arrested on probable cause. We find no merit in this argument nor in the proposition that a person cannot be arrested for publishing obscene material until after such material has been found obscene in an in rem proceeding under sec. 269.565, Stats.

The basic issue in this case is whether the court employed the proper test of obscenity and whether the material in Kaleidoscope is obscene. Kois argues the trial court did not make any finding in regard to social value and therefore employed an improper test of obscenity. We think it is clear from the record the trial court did consider the social value of the material and found or indicated in its opinion the material had no social value.

While the test of obscenity for constitutional purposes is in a state of flux, this court has followed what has appeared to be from time to time the majority or the plurality view of the Supreme Court of the United States. Whether we are required to or not, this court has accepted the Roth test as modified by Memoirs and as expounded in Ginsberg v. New York, supra. ³ Since these cases, we must now recognize Stanley v. Georgia (1969), 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542.

Four cases have come before this court since Roth repudiated the old Hicklin ⁴ test and the obscenity cases began to flood state and national courts. In State v. Chobot, 12 Wis.2d 110, 106 N.W.2d 286, we affirmed a conviction for selling obscene material in violation of sec. 944.21(1)(a), Stats., (the same question involved in this case) on the basis of Roth and its holding the obscenity was not within the protection of the speech and press freedoms of the first amendment. Thus we furnished the meaning to our statute and held the words 'lewd, obscene or indecent' as used in the section were not unconstitutionally indefinite. In McCauley v. Tropic of Cancer, 20 Wis.2d 134, 121 N.W.2d 545, our declaratory judgment statute, sec. 269.565, providing for an in rem adjudication of obscenity material was applied to the book Tropic of Cancer. This section was upheld on the basis the Roth test defined the language of the statute. We pointed out that in applying the Roth test a balancing of factors was necessarily implied, especially the factor of redeeming social value, and pointed out that sec. 269.565 also contemplated such balancing of factors because sec. 269.565 provided for the admissibility of evidence relating to the literary, cultural, or educational character of the material as well as providing that the dominant effect of the material as a whole should be determinative.

In State v. Voshart (1968), 39 Wis.2d 419, 159 N.W.2d 1, we again reviewed the Supreme Court cases on obscenity and stated that when, under the Roth-Memoirs test, the three elements coalesce and you had such an identifiable obscenity, the state could constitutionally suppress it by either civil or criminal sanctions. We also recognized the test of 'hard core pornography.' See Mishkin v. New York (1966), 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56. This test is the equivalent of saying the material is obscene as a matter of law or per se because it means 'something that most judges and others will know * * * when (they) see it.' See Harlan's dissent in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Massachusetts, supra, at 457, 86 S.Ct. at 997; Stewart's concurrence in Jacobellis v. Ohio (1964), 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793; also Morris v. United States (D.C.App.1969), ...