462 P.2d 845 (Ariz.App. Div. 2 1969), 2 CA-CIV 782, Barbone v. Superior Court of Pima County

• Citation: 462 P.2d 845, 11 Ariz.App. 152
• Opinion Judge: [9] Howard
• Party Name: Jimmy BARBONE, Dolores C. Pitts and Art Urias, Petitioners, v. SUPERIOR COURT OF PIMA COUNTY; and William J. Schafer, III, County Attorney for Pima County; and the State of Arizona, Respondents.
• Attorney: [6] Joseph H. Soble, Peter M. Rubi, Tucson, and Richard J. Hertzberg, Phoenix, for petitioners. [7] Rose Silver, Pima County Atty., William J. Schafer, III, former County Atty., by Howard A. Kashman, Deputy County Atty., Tucson, for respondents.
• Case Date: December 19, 1969
• Court: Arizona Court of Appeals

Page 845

462 P.2d 845 (Ariz.App. Div. 2 1969)

11 Ariz.App. 152

Jimmy BARBONE, Dolores C. Pitts and Art Urias, Petitioners,

v.

SUPERIOR COURT OF PIMA COUNTY; and William J. Schafer, III, County Attorney for Pima County; and the State of Arizona, Respondents.

No. 2 CA-CIV 782.

Court of Appeals of Arizona, Second Division

December 19, 1969

Joseph H. Soble, Peter M. Rubi, Tucson, and Richard J. Hertzberg, Phoenix, for petitioners.

Rose Silver, Pima County Atty., William J. Schafer, III, former County Atty., by Howard A. Kashman, Deputy County Atty., Tucson, for respondents.

HOWARD, Judge.

The petitioners, defendants in criminal proceedings presently pending in Pima county superior court, have asked this court to issue a writ of prohibition, directed to the respondent court, to halt the respective criminal prosecutions.

The petitioners were charged with violations of our obscenity statute, A.R.S. § 13--532, as amended, and subsequently filed motions to quash challenging the constitutionality of the statute. The motions were denied and these extra-ordinary writ proceedings were commenced, an appropriate vehicle for testing the constitutionality issue. Loftus v. Russell, 69 Ariz. 245, 212 P.2d 91 (1949); Canon v. Justice Court for Lake Valley Judicial District of El Dorado County, 61 Cal.2d 446, 39 Cal.Rptr. 228, 393 P.2d 428 (1964).

A.R.S. § 13--532, as amended, provides:

'A person is guilty of a misdemeanor who, knowingly:

1. Prints, copies, manufactures, prepares, produces, or reproduces any Obscene item for purposes of sale or commercial distribution.

2. Publishes, sells, rents, lends, transports in intrastate commerce, or commercially[11 Ariz.App. 153]

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   distributes or exhibits any Obscene item, or offers to do any such things.

3. Has in his possession with intent to sell, rent, lend, transport, or commercially distribute any Obscene item.' (Emphasis added.)

   The term 'obscene' is defined in A.R.S. § 13--531.01:

   'In this article, unless the context otherwise requires:

2. 'Obscene' means that which considered as a whole has as its dominant theme or purpose an appeal to prurient interest or a shameful or morbid interest in nudity, sex or lewdness going substantially beyond customary limits of candor in description or representation of such matters.'

   The petitioners' claim of unconstitutionality is directed to the sufficiency of the statutory definition of 'obscene.' Since the definition, they argue, does not include the 'average man' test and the 'utterly without redeeming social importance' test, as articulated in recent U.S. Supreme Court decisions, it suffers a constitutional infirmity. These same contentions were advanced in the case of City of Phoenix v. Fine, 4 Ariz.App. 303, 420 P.2d 26 (1966), and our Phoenix counterpart found no constitutional defect in the statutory definition of obscene, holding that neither test is a part of the definition of the word itself. Although under certain circumstances we would not consider ourselves bound by a prior decision of Division One of this court, Streenz v. Streenz, 11 Ariz.App. 10, 461 P.2d 186 (filed November 18, 1969), we find ourselves in accord with the City of Phoenix holding.

   The petitioners argue, however, that the City of Phoenix decision is not in accord with the principles enunciated by our Arizona Supreme Court in State v. Locks, 97 Ariz. 148, 397 P.2d 949 (1964), wherein the court struck down, on the grounds of vagueness, the predecessor counterpart of A.R.S. § 13--532. (No legislative definition of 'obscene' was set forth.) The court therein stated:

   'The law must be definite and certain so that the same standard of conduct may be applied by all persons affected. The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes, the mandates of which are so uncertain that they will admit to different constructions. The crime and the elements constituting it must be so clearly expressed that the ordinary person can intelligently choose in advance what course it is lawful for him to pursue.' (Citations omitted.) 97 Ariz. at 150, 397 P.2d at 951.

   And:

   'From what we have said, it is obvious that a layman would have nothing but difficulty and confusion in his mind were he to attempt to work out his own definitions of the words 'obscene or indecent' as used in A.R.S. § 13--532. Were he to refer to a standard dictionary, he would find many definitions of the words 'obscene' or 'indecent,' none of which would give him the knowledge he would need to determine the legal definition, and, of course, without that knowledge, he could not determine whether he would run contrary to the law were he to conclude that any particular material was not obscene. * * *

   In the light of the problem concerning the meaning of the words 'obscene and indecent,' we hold that the Arizona statute under which the Information in this case was filed is too indefinite and uncertain to permit this conviction to stand. While it is in the province of the court to submit a case to the jury under appropriate definition of the words of the governing statute, it is beyond the court's power to supply definitions necessary to render a deficient statute valid, since such action is legislative and not [11 Ariz.App. 154]

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   judicial.' 97 Ariz. at 152, 397 P.2d at 952.

   While the judiciary is duty bound to construe a statute so as to sustain its constitutionality, Shenfield v. City Court, 8 Ariz.App. 81, 443 P.2d 443 (1968); State v. Scofield, 7 Ariz.App. 307, 438 P.2d 776 (1968); Arizona Corporation Commission v. Continental Security Guards, 103 Ariz. 410, 443 P.2d 406 (1968), penal statutes which restrict the exercise of particular constitutional rights are subject to closer scrutiny as to the requisite specificity. State v. Cota, 99 Ariz. 233, 408 P.2d 23 (1965). Courts, however, require only that a statute give Fair warning of the proscribed conduct, i.e., the language does not have to achieve that degree of exactness which inheres in a mathematical theorem, but is sufficient if it informs a person of ordinary or average intelligence of the prohibited conduct. State v. Horn, 4 Ariz.App. 541, 422 P.2d 172 (1966); Brockmueller v. State, 86 Ariz. 82, 340 P.2d 992 (1959), cert. den., 361 U.S. 913, 80 S.Ct. 258, 4 L.Ed.2d 184.

   The problem of defining obscenity has been discussed in numerous articles and books. See, e.g., R. Fox, The Concept of Obscenity (1967); Ernst & Schwartz, Censorship: The Search for the Obscene (1964); 'Obscenity: An Analysis and Statutory Proposal,' Wis.L.Rev. 421 (1969); 'Candor or Shame? Defining Obscenity by Statute,' 38 Okl.B.A.J. 1333 (1967); M. Paulsen, The Problem of Drafting an Obscenity Statute (1961). The Oklahoma Bar Journal article points out the varying techniques of defining obscenity in the various states: (1) No definition; (2) Use of multiple synonyms; (3) As a tendency to corrupt youth; (4) As a tendency to corrupt public morals; and (5) Including...