City of Blue Island v. DeVilbiss

• Decision Date: 22 November 1968
• Docket Number: No. 40536,40536
• Citation: 242 N.E.2d 761,41 Ill.2d 135
• Parties: The People of the CITY OF BLUE ISLAND, Appellee, v. Kenneth DeVILBISS, Appellant.
• Court: Illinois Supreme Court

Page 761

242 N.E.2d 761

41 Ill.2d 135

The People of the CITY OF BLUE ISLAND, Appellee, v. Kenneth DeVILBISS, Appellant.

No. 40536.

Supreme Court of Illinois.

Nov. 22, 1968.

Rehearing Denied Jan. 14, 1969.

Howard T. Savage, Chicago, for appellant.

Romie J. Palmer, Blue Island, for appellee.

KLUCZYNSKI, Justice.

Defendant, Kenneth DeVilbiss, owner and operator of a bookstore in Blue Island, Illinois, was charged with knowingly exhibiting and selling obscene books in violation of the obscenity ordinance of the city of Blue Island. (City Ordinance No. 1983, sec. 1.2.) Following a bench trial in the circuit court of Cook County, he was found guilty and fined $300 and costs. His appeal is properly before this court because questions arising under the Federal and State constitutions are involved.

Defendant does not contest that obscenity is outside the protection of the constitutional guarantees of free speech or that the distribution of obscene material may be punished criminally. (Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. In essence, he contends that neither the obscene quality of the books in question nor his knowledge of their contents was sufficiently proved by competent evidence. He also attacks the constitutionality of certain sections of the obscenity ordinance, including the section defining obscenity. That section states: 'A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and it goes substantially beyond customary limits of candor in description or representation of such matters. A thing is obscene even though the obscenity is latent, as in cases of undeveloped photographs'. Defendant asserts this definition is faulty because it omits the qualification announced in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, that obscenity must be 'utterly without redeeming social importance'. This same attack was made upon the Chicago obscenity ordinance and rejected in City of Chicago v. Kimmel, 31 Ill.2d 202, on pages 205, 206, 201 N.E.2d 386, on page 388, where the court, quoting from Roth, noted that "* * * (T)he Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices" and that therefore 'It would be most unreasonable to require a legislative draftsman to incorporate every nuance of constitutional dictum into a statutory definition'. Applying these standards here, we hold that the ordinance definition is constitutionally sufficient. We also note that this definition is identical to the definition set forth in the State obscenity statute (Ill.Rev.Stat.1967, chap. 38, par. 11--20(b)) which has previously been upheld against constitutional attack based on slightly different grounds. See People v. Sikora, 32 Ill.2d 260, 262, 204 N.E.2d 768.

Defendant also attacks section 1.4(4) of the ordinance which provides that evidence shall be admissible in a prosecution under the ordinance to show 'The degree, if any, of public acceptance of the material in this State.' He charges that this 'unconstitutionally authorized the trial judge to find (him) guilty based upon what he believed to be the public acceptance of the material in the State of Illinois.' We have previously pointed out that the constitutionality of a State standard as opposed to a national standard, which section 1.4(4) appears to sanction, has not been decided by the United States Supreme Court. (People v. Sikora, 32 Ill.2d at 264, 204 N.E.2d 768; Cusack v. Teitel Film Corp., 38 Ill.2d 53, 68, 230 N.E.2d 241.) In those cases we found it unnecessary to resolve this issue since no evidence of any State standard was offered or received and the trial judge did not appraise the subject material in terms of an exclusively local standard. Because these same facts are present in this case, we again have no need to decide this issue.

Defendant finally charges, with respect to the validity of the ordinance, that it does not make Scienter an element of the offense proscribed, contrary to the constitutional mandate announced in Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. Section 1.2 of the ordinance provides in relevant part: 'It shall be unlawful for any person * * * With knowledge of the nature or content thereof, to exhibit, sell, * * * obscene (material.)' (Italics supplied.) It is apparent, despite defense counsel's novel interpretation of the italicized language, that this section does make Scienter an element of the offense proscribed in accordance with constitutional requirements.

Defendant's contention that the element of Scienter, viz., his knowledge of the obscene quality of the books in question, was not established requires a review of the evidence on that issue. The four books forming the basis of his conviction were entitled, respectively 'Flesh Whip', 'Home Sweet Homo', 'Lesbian Lust' and 'Any Sex Will Do'. Each book cover was illustrated with pictures of partially clad or nude men and women with accompanying descriptive language designed to appeal to the prurient interest. For example, the cover of 'Flesh Whip' pictures a nude girl reclining face down on a pad while a partially-clad girl hovers over her. The accompanying caption declares 'This woman was a savage bull dike, which (sic) ravished girls; in two weeks she could turn them into lesbians with her own burning lips, in a high-priced house she helped run.' These books were taken from one side of a four-sided rack in defendant's bookstore; a photograph of this particular side showed that it contained with one exception nothing but similarly illustrated and captioned books, e.g., 'Killer-Whore', 'Carnival of Lust', 'Slut Orgy', etc. The price of these books was far in excess of the majority of the paper-backs displayed on the other sides of the rack or on other racks. It was undisputed that defendant was the sole owner of the bookstore and chiefly responsible for placing the paperback books in the display racks.

The arresting officers testified that defendant told them he did not allow his teenage son, who worked part-time in the store, to read these types of books nor to sell them to people under 21. Defendant testified and denied reading the books or having knowledge of their contents. He stated that he placed books on racks solely on the basis of the company which published them; that is, all the books of one publisher were displayed in the same rack.

The trial judge found that there was Scienter, and in our judgment there is substantial evidence in the record to support this conclusion. It is not consequential that no direct evidence that the defendant read the books was presented since 'Eyewitness testimony of a bookseller's perusal of a book hardly need be a necessary element in proving his awareness of its contents. The circumstances may warrant the inference that he was aware of what a book contained,...