State v. A Quantity of Copies of Books

Decision Date02 March 1963
Docket NumberP-K,No. 42829,42829
Citation379 P.2d 254,191 Kan. 13
PartiesSTATE of Kansas, Appellee, v. A QUANTITY OF COPIES OF BOOKS, Harold Thompson and Robert Thompson, d/b/aNews Service, Appellants.
CourtKansas Supreme Court

Syllabus by the Court

In a proceeding in rem for the confiscation of thirty-one named paper-back books, it is determined that the said books were obscene and subject to seizure and destruction.

Obscenity has no constitutional protection as to free speech by either the federal or state constitutions.

There was no right to a jury trial in the above case, since there was no basis at common law for the within action.

Robert A. Schermerhorn, Junction City, and Stanley Fleishman, Hollywood, Cal., argued the cause, C. L. Hoover and William R. King, Junction City, with them on the briefs, for appellants.

William M. Ferguson, Atty. Gen., argued the cause, Robert E. Hoffman, Asst. Atty. Gen., and William Clement, County Atty., with him on the briefs, for appellee.

JACKSON, Justice.

On July 24, 1961, William M. Ferguson, attorney general of Kansas, brought an action under the new statute which had recently been passed by the Kansas legislature in relation to obscene books and writings. He thereupon caused to be filed before the district judge in Geary county at Junction City, the county seat, an information setting out that the P-K News Service of that city had in stock and possession a quantity of paper-back books which were named in the information. We are told that the judge was given seven copies of the books for perusal before issuing the warrant for seizure. The judge's remarks about his reading of the books may be found in the transcript of the proceedings of July 25, 1961. The court did not delay in issuing the warrant under section 4 of Laws of 1961, ch. 186. (Now also found in G.S.1961 Supp. 21-1102c.)

Thereafter, the sheriff of Geary county was given a search warrant and notice of hearing. Harold Thompson and Robert Thompson, owners of the P-K News Service, were given notice to appear on August 7, 1961 to determine whether the books seized were obscene. After serving the warrant, the sheriff reported and certified that he had found 1715 individual copies of the paper-back books.

On August 7, 1961, the interveners--now appellants--filed a motion to quash. The court heard arguments on this motion on August 7, and on August 11, denied the motion to quash. On August 8, the appellants moved for a continuance. This motion was granted and the court continued the case until September 14. On September 6, appellants moved that they be granted a jury trial. This was denied. Thereafter, the matter was tried to the court, and the court handed down a short memorandum opinion on September 19, 1961. We are setting out the opinion here as the clearest way of showing what the trial court thought about the case:

'MEMORANDUM DECISION

(Filed September 19, 1961)

'The sole question before the Court at this time is whether the books in question, as shown in the warrant issued by this Court, are obscene literature as defined in Chapter 186 of the Session Laws of the State of Kansas, 1961.

'The test to be employed under our law is taken directly from an instruction approved by the Supreme Court of the United States in the case of Roth v. the United States, which was decided together with Albert v. State of California in 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 [sic.]. This Court must then look to these two decisions.

'The test of obscenity as laid down by the Court in the Roth case is as follows: 'Whether to the average person, employing contemporary community standards, the dominent theme of the material taken as a whole appeals to prurient interests.'

'The four words or phrases italicized above form the yardstick by which these books are to be judged. The first two are impossible as to ascertainment to a certainty. The 'dominent theme' of the book is antonymous to 'isolated excerpts'. Webster's New World Dictionary of the American Language, College Edition (1960), defines 'prurient' as follows: '1. Having lustful ideas or desires. 2. Lustful, lascivious, lewd: as, prurient longings. 3. Itching.'

'The Court approved as a further guide the definition of obscenity in the Model Penal Code, Section 207.10(2), as follows: 'A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i. e., shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond the customary limits of candor or representation of such matters.'

'This Court has further kept in mind, based upon the above decisicions, that sex and obscenity are not synonomous.

'This Court would draw a line as between the books in question here and the books introduced by the intervener, that being the purpose for which the books were written. In the case of the books introduced into evidence by the intervener, the core of the said books would seem to be the plot, with sex being subservient thereto and only acting as an agent to carry the plot to its intended conclusion, while in the books in question, the core would seem to be that of sex, with the plot, if any being subservient thereto.

'This Court has made the rule of the Roth case, and the test as set forth in the law in question, operative in this case in the following manner: If the books in question showed this Court that their dominant purpose was calculated to effectively incite sexual desires, and the Court further believed that they would have this effect on the average person residing in this community, then they are not entitled to the protection of the Amendment to the Constitution. This Court believes that the books under indictment here fall within the last statement and are not entitled to the said protection.

'IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the books in question are found to be in violation of Chapter...

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9 cases
  • State v. Onorato
    • United States
    • Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
    • December 23, 1965
    ...of obscenity held unconstitutional under the first amendment, made applicable to the states by the fourteenth amendment, reversing 191 Kan. 13, 379 P.2d 254); Tralins v. Gerstein, 378 U.S. 576, 84 S.Ct. 1903, 12 L.Ed.2d 1033 ('Pleasure Was My Business' condemned as obscene and its dissemina......
  • State v. A Motion Picture Entitled 'The Bet'
    • United States
    • Kansas Supreme Court
    • March 6, 1976
    ...for the seizure and destruction of publications deemed to be obscene and immoral have met similar fates. (See State v. A. Quantity of Copies of Books, 191 Kan. 13, 379 P.2d 254, rev. 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809, and State ex rel. v. A Quanitity of Copies of Books, 197 Kan. 3......
  • Grove Press, Inc. v. State of Kansas
    • United States
    • U.S. District Court — District of Kansas
    • October 6, 1969
    ...court. State ex rel. Londerholm v. A Quantity of Copies of Books, 197 Kan. 306, 416 P. 2d 703 (1966); State v. A Quantity of Copies of Books, 191 Kan. 13, 379 P.2d 254 (1963). If the plaintiffs were remitted to the state courts, they could easily preserve their right to return to this court......
  • Quantity of Copies of Books v. State of Kansas
    • United States
    • U.S. Supreme Court
    • June 22, 1964
    ...seized. The Kansas Supreme Court held that the procedures met constitutional require ents and affirmed the District Court's order. 191 Kan. 13, 379 P.2d 254. Probable jurisdiction was noted, 375 U.S. 919, 84 S.Ct. 268, 11 L.Ed.2d 163. We conclude that the procedures followed in issuing the ......
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