Cherokee News & Arcade, Inc. v. State

• Decision Date: 26 January 1973
• Docket Number: No. A--16120,A--16120
• Citation: 509 P.2d 917
• Parties: CHEROKEE NEWS & ARCADE, INC., et al., Appellants, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 917

509 P.2d 917

CHEROKEE NEWS & ARCADE, INC., et al., Appellants, v. The STATE of Oklahoma, Appellee.

No. A--16120.

Court of Criminal Appeals of Oklahoma.

Jan. 26, 1973.

Rehearing Denied March 20, 1973.

Syllabus by the Court

1. Although a judicial-adversary hearing on the question of obscenity is necessary prior to the seizure of allegedly obscene materials, such a hearing is not a condition precedent where the materials are obtained by purchase and no seizure is involved in a prosecution for selling obscene materials.

2. The Oklahoma Obscenity Statute (21 O.S. §§ 1040.8 and 1040.13), which defines obscene to mean that to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appears to prurient interest, is constitutional although the statute does not mention the 'without redeeming social value' element, or specify it is a 'national' contemporary community standard, since the full constitutional standard to determine obscenity is to be implied whenever the statute is applied.

An appeal from the District Court of Comanche County; Lonnie G. Long, Judge.

Cherokee News & Arcade, Inc., et al. were tried without a jury for the crime of selling obscene materials, found guilty, and punishment was imposed by fine of $100.00 per defendant per case for a total of $2,800.00; fourteen charges were consolidated. This appeal is perfected therefrom. Cases No. CRM--69--944, CRM--69--945, CRM--69--952, CRM--69--979, CRM--69--980, CRM--69--990, CRM--69--991, CRM--69--1022, CRM--69--1023, CRM--69--1135 and CRM--69--1170 are Reversed and Remanded with instructions to Dismiss. Case No. CRM--69--947 is Affirmed.

Woodson & Gasaway, Tulsa, for appellants.

G. T. Blankenship, Atty. Gen., W. Howard O'Bryan, Jr., Asst. Atty. Gen., for appellee.

BRETT, Judge:

Plaintiffs in Error, Cherokee News & Arcade, Inc., Joyce Stoffell, Rosalie Lonsdale, Walter Lonsdale, David A. Goldsmith, and Mike Fox, hereinafter referred to as defendants, were charged in the District Court of Comanche County with fourteen criminal violations of selling obscene materials. The fourteen charges were consolidated for trial and tried before the court without a jury. Defendants were found guilty, and judgment and sentence was imposed on April 22, 1970, fixing punishment at a fine of $100.00 per defendant per case for a total of $2,800.00.

To gain a proper perspective we observe that this appeal does not involve pandering, Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966); or assault upon individual privacy by publication in a manner as to make it impossible for the unwilling and unsuspecting to avoid exposure to it, Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233 (1950); or distribution to juveniles, Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438. 88 L.Ed. 645 (1943). Indeed, the record positively establishes there were no sales to juveniles. This case involves nothing more than the sale of alleged obscene materials to adults.

I.

We first consider defendants' contention that the Oklahoma Obscenity Statute is unconstitutional:

(a) because of the absence of a statutory procedure for a judicial determination of obscenity prior to arrest and seizure of materials;

(b) because the elements of the offense are not set forth; and

(c) because the Oklahoma Statute encompasses adults and is not limited to distribution to juveniles, or unwilling and unsuspecting individuals, or under pandering circumstances. The trial court overruled defendants' objections on constitutional grounds without stating his reasons.

Nothing in the record identifies by title and section the exact statute under which the prosecutions were founded. It would appear the offenses charged were violations of 21 O.S.1971 § 1040.8 and/or 21 O.S.1971 § 1040.13. Section 1040.8, among other things, makes it 'unlawful for any person to knowingly . . . sell . . . or otherwise distribute . . . any obscene book, magazine, . . . or other article which is obscene, filthy, indecent, lascivious, lewd or unfit, as defined in Title 21 of the Oklahoma Statutes § 1040.12. . . .' Section 1040.12, among other terms defined, provides "obscene' means that to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.'

The charge herein also states a violation of 21 O.S.1971 § 1040.13, which provides in relevant part that 'Every person who, with knowledge of its contents, . . . sells . . . any obscene, lewd, lascivious, filthy or indecent article . . . is guilty of a misdemeanor . . ..' Both sections carry the same penalty and our consideration is limited to these provisions.

Defendants' challenge to the constitutionality of the obscenity statute because there is no procedure for an adversary hearing on obscenity prior to arrest is based on the rule that due process requires such a hearing before allegedly obscene materials can be seized for the purpose of preventing dissemination. In Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), the United States Supreme Court found a mass seizure of allegedly obscene publications under a Missouri procedure violated due process demands to assure non-obscene material constitutional protection because 'there was no step in the procedure before seizure designed to focus searchingly on the question of obscenity.' 367 U.S. at 732, 81 S.Ct. at 1716. In A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1732, 12 L.Ed.2d 809 (1964), the Supreme Court invalidated a state procedure where after an ex parte inquiry a judge ordered the seizure of a large quantity of allegedly obscene books. In 'not first affording (defendants) an adversary hearing, the procedure leading to the seizure order was constitutionally deficient.' 378 U.S. at 211, 84 S.Ct. at 1726. The conviction of a motion picture operator for exhibiting obscene films was overruled by the Supreme Court in Lee Art Theatre v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968), because the films were seized on a warrant issued without a prior hearing on their obscenity. 'The procedure under which the warrant issued solely upon the conclusory assertions of the police officer without any inquiry by the justice of the peace into the factual basis for the officer's conclusions was not a procedure 'designed to focus searchingly on the question of obscenity' . . ..' 392 U.S. at 637, 88 S.Ct. at 2104. Accordingly, the courts have held that due process requires a judicial adversary hearing on the question of obscenity before allegedly obscene materials can be seized. ¹

We also note that a former Oklahoma Statutory Procedure, 21 O.S. § 1040.1 through § 1040.10, to review publications for obscenity was held unconstitutional as it authorized the banning of literature found objectionable and permitted 'the prosecution of one who violates the administrative ban all of which may occur Before there is any judicial determination of obscenity.' Holding v. Nesbitt, 259 F.Supp. 694, 700 (W.D.Okl.1966). Affirmed by the United States Supreme Court in Blankenship v. Holding, 387 U.S. 95, 87 S.Ct. 1419, 18 L.Ed.2d 586 (1967).

However, the case at bar does not involve the mass seizure or prior censorship of alleged obscene materials. The publications admitted into evidence were purchased individually on different dates by different people from the defendants. None of the exhibits were seized incident to arrest or pursuant to a warrant. There is a significant distinction between seizure and merely obtaining a copy as evidence of a criminal offense. In Peachtree News v. Slaton, 226 Ga. 471, 175 S.E.2d 539 (1970) and Gornto v. State, 227 Ga. 46, 178 S.E.2d 894, 896 (1970), it was held there 'is no necessity for an adversary hearing on the question of obscenity of publications prior to the institution of a criminal action against the distributor, where the publications have been obtained by the prosecuting officers by purchase and no seizure of the publications is required for evidence.' Other courts have also held that a prior adversary hearing on obscenity is not necessary where only a single copy is obtained as evidence to be used in a criminal prosecution. State v. Hartstein, 469 S.W.2d 329 (Mo.1971). Bazzell v. Gibbens, 306 F.Supp. 1057 (E.D.La.1969). State v. Vollmar, 389 S.W.2d 20 (Mo.1965).

It should be noted that aside from the statutes considered here prohibiting sale of obscene matters, §§ 1040.8 and 1040.13, the Oklahoma Statutes provide a procedure for a judicial adversary hearing prior to seizure of alleged obscene mailable matter. 21 O.S.1971 §§ 1040.14 to 1040.25.

Defendants next challenge the constitutionality of the obscenity statute for its failure to set forth the elements of the offense; that is, the absence of the elements necessary to determine obscenity. Defendants argue the failure to include the 'utterly without redeeming social value' test, Memoirs v. Massachusetts, 383 U.S. 413, 418--419, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), and failure to specify that the 'Contemporary community standard' to be applied is a national, not a local standard, Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), renders our statutes unconstitutional on their face.

In Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957), the United States Supreme Court held that 'obscenity is not within the area of constitutionally protected speech or press.' Thus the states have been free to regulate obscenity excluding certain areas such as private possession. As the Supreme Court stated in Stanley v. Georgia 394 U.S. 557, 568, 89 S.Ct. 1243, 1250, 22 L.Ed.2d 542 (1969), while the 'states retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual in the privacy of his own home.' But in those cases, such as this...