City of St. Louis v. Williams, s. 47848-47850

• Decision Date: 13 February 1961
• Docket Number: No. 1,Nos. 47848-47850,s. 47848-47850,1
• Parties: CITY OF ST. LOUIS, Respondent, v. Mary T. WILLIAMS, Appellant. CITY OF ST. LOUIS, Respondent, v. Joseph ROSENBERGER, Appellant. CITY OF ST. LOUIS, Respondent, v. Mario J. CIRIO, Appellant
• Court: Missouri Supreme Court

Page 16

343 S.W.2d 16

CITY OF ST. LOUIS, Respondent, v. Mary T. WILLIAMS, Appellant.

CITY OF ST. LOUIS, Respondent, v. Joseph ROSENBERGER, Appellant.

CITY OF ST. LOUIS, Respondent, v. Mario J. CIRIO, Appellant.

Nos. 47848-47850.

Supreme Court of Missouri, Division No. 1.

Feb. 13, 1961.

Morris A. Shenker, Bernard J. Mellman, St. Louis, for appellants.

Thos. J. Neenan, City Counselor, Eugene P. Freeman, Associate City Counselor, David S. Hemenway, Thomas F. Shanahan, Asst. City Counselors, St. Louis, for respondent.

HOLMAN, Commissioner.

These three obscenity cases originated in the City Court of the City of St. Louis. Each of the defendants was acquitted upon trial of the cases in that court. The City appealed to the St. Louis Court of Criminal Correction where trial before the court resulted in findings that each of the defendants was guilty and the punishment in each case was fixed at a find of $100. The defendant in each case has appealed. The parties have been permitted to file consolidated briefs and the cases were consolidated upon our docket for the purpose of argument. In seeking leave to file consolidated briefs the parties joined in a motion wherein it was agreed 'that the issues involved in the appeals in these cases are substantially identical, and that the facts in each case are in substance the same or similar.' In the situation presented all of the cases will be disposed of in this opinion. Our references herein will be to matters appearing in the transcript filed in the Williams case.

We have jurisdiction of this appeal because constitutional questions have been timely and properly presented. Article V, Section 3, Constitution of Missouri 1945, V.A.M.S.

Appellants were charged with violating Section Two of Ordinance No. 47516 of the City of St. Louis, which reads as follows: 'It shall be unlawful for any person to sell, offer for sale, attempt to sell, exhibit, give away, distribute, keep in his possession with intent to sell or give away, or in any way furnish or attempt to furnish to any minor, any picture, comic book, magazine or other publication which is of an obscene or indecent nature.'

In the amended complaint it was charged 'that the said Mary Theresa Williams did on January 20, 1958, at the premises aforesaid while in charge thereof display a magazine of obscene and indecent nature known as 'The Dude' March 1958 issue at a location within and upon said premises where the same may be seen by a minor visiting such premises; that the said defendant Mary Theresa Williams on January 20, 1958, at the premises aforesaid, while in charge thereof, while displaying 'The Dude' as aforesaid, did intend to sell, did offer for sale, attempt to distribute and furnish such magazine to minors in violation of said ordinance, and contrary to the law in such case made and provided.'

We are of the opinion that the recent decision of the Supreme Court of the United States in Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 216, 4 L.E.2d 205, is controlling herein and upon the basis thereof we rule as hereinafter explained, that the section of the ordinance heretofore set out is unconstitutional and void. In view of our decision in that regard we will not reach a number of contentions briefed by appellants, and a brief statement of facts will suffice.

Police Lieutenant Dorn testified that upon the date in question he entered the Taylor-Easton Drug Store at about 2:30 p. m.; that there was a rack for the display of magazines located about three feet from the door; that two copies of the magazine 'Dude' were displayed on the bottom shelf of the rack; that he picked up a copy of 'Dude' and took it to the counter and gave Mrs. Williams 50 cents, the price stated thereon; that Mrs. Williams accepted the money and he then identified himself and placed her under arrest; that he subsequently exhibited a portion of the contents of the magazine to her and she stated that she had not examined the contents of the magazine since it had been delivered by the Pierce News Company and had no knowledge of its contents; that Mrs. Williams was one of three employees in the store at the time the magazine was purchased.

In the Smith case the Los Angeles city ordinance involved made it unlawful 'for any person to have in his possession any obscene or indecent writing, book, pamphlet * * * in any place of business where * * * magazines, books, * * * are sold or kept for sale * * *.' Defendant therein was convicted under the provisions of said ordinance of having had possession, in his book store, of an obscene book. It was held that the ordinance could not stand because it did not require proof of scienter, i. e., knowledge by the defendant of the contents of the book, with the result that strict criminal liability was imposed upon the bookseller for possession of an obscene book.

'It is no longer open to doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action. It was found impossible to conclude that this essential personal liberty of the citizen was left unprotected by the general guaranty of fundamental rights of person and property.' Near v. State of Minnesota, 283 U.S. 697, 707, 51 S.Ct. 625, 628, 75 L.Ed. 1357. It is held, however, in Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498, that 'obscenity is not within the area of constitutionally protected speech or press.'

In Smith, supra, the court pointed our that the states have no 'power to restrict the...