Com. v. Capri Enterprises, Inc.

• Decision Date: 23 April 1974
• Citation: 365 Mass. 179,310 N.E.2d 326
• Parties: COMMONWEALTH v. CAPRI ENTERPRISES, INC. (and two companion cases) 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 326

310 N.E.2d 326

365 Mass. 179

COMMONWEALTH v. CAPRI ENTERPRISES, INC. (and two companion cases)¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 5, 1974.

Decided April 23, 1974.

Morris M. Goldings, Boston, for defendant.

Timothy P. O'Neill, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.

WILKINS, Justice.

The corporate defendant and the individual defendant were indicted under G.L. c 272, § 28A, for knowingly having in their possession on August 30, 1973, for the purpose of exhibition, an 'obscene, indecent and impure motion picture film entitled 'The Devil In Miss Jones. " The corporate defendant was also indicted under G.L. c. 272, § 32, for knowingly showing 'a lewd, obscene, indecent, immoral and impure show and entertainment by presenting and exhibiting a motion picture film entitled 'The Devil In Miss Jones." The judge charged the jury on the basis of the constitutional standard set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The defendants were found guilty on each indictment. Each defendant was fined $5,000 on the § 28A indictments and the individual defendant was sentenced to two and one-half years in the house of correction. The indictment under G.L. c. 272, § 32, was filed. The cases are before us on the defendants' appeals under G.L. c. 278, §§ 33A--33G.

Although the defendants have argued numerous assignments of error, we need not deal with most of them. Our decision in Commonwealth v. Horton, Mass. (1974), 310 N.E.2d 316, decided this day, indicates that G.L. c. 272, § 28A, is unconstitutionally vague under the standard of the Miller case. The verdict under G.L. c. 272, § 32, may not stand because § 32 is subject to the same constitutional infirmities as is § 28A. Our decisions construing § 32 have not given specificity to the general prohibiton of § 32. We have suggested that the standard of § 32 is the same as that of § 28A for the purpose of determining obscenity (Commonwealth v. Moniz, 338 Mass. 442, 155 N.E.2d 762 (1959)), and have in effect given to § 32 a scope of application as broad as has been constitutionally permissible under the First Amendment to the Constitution of the United States. See P.B.I.C., Inc. v. District Atty. of Suffolk County, 357 Mass. 770, 258 N.E.2d 82 (1970). Section 32, therefore, fails to meet the standard of specificity required by the Miller decision, and for the same easons expressed in our decision in the Horton case, ante, we decline to reinterpret § 32 to provide judicially the description of specific sexual conduct which must exist to satisfy First Amendment requirements as now defined.

Judgments reversed and verdicts set aside.

HENNESSEY, Justice (concurring).

I concur in the result and reasoning of the court's opinion, since I agree that we should apply the same constitutional consideration to G.L. c. 272, § 32, as we applied to G.L. c. 272, § 28A, in Commonwealth v. Horton, Mass., 310 N.E.2d 316. I would also incorporate here the comments in my concurring opinion in the Horton case.

KAPLAN, Justice, concurring, refers to his concurring opinion in Commonwealth v. Horton, Mass., 310 N.E.2d 316.

BRAUCHER, Justice (dissenting, with whom REARDON and QUIRICO, JJ., join).

According to the court's opinion in Commonwealth v. Horton, Mass., 310 N.E.2d 316, Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), reduces the area of First Amendment protection in the field of obscenity. Perversely, however, this development is held to render invalid applications of the Massachusetts obscenity statutes which would have been valid before the Miller case. The Miller decision, it is said, renders our statutes unconstitutionally vague. In effect (with an inexplicable exception for material 'harmful to minors'), the Commonwealth now has no operative obscenity statutes. We disagree.

The court holds our statutes deficient with respect to only one element of the Miller standard: 'The applicable State law, 'as written or authoritatively construed,' must specifically define the sexaul conduct whose depiction or description is interdicted.' Before the Miller case was decided, we had limited the operation of the Massachusetts statutes on the subject to portrayal of 'actual sexual congress or other activities commonly known as hard core ponography.' Commonwealth v. Palladino, 358 Mass. 28, 32, 260 N.E.2d 653, 656 (1970). Commonwealth v. Donahue, 358 Mass. 803, 263 N.E.2d 589 (1970). COMMONWEALTH V. BITSOCOS, MASS., (1972), 281 N.E.2D 227.^A See COMMONWEALTH V. CLAFLIN, MASS.APP. (1973), 298 N.E.2D 888.^B So limited, the statutes, as 'authoritatively construed,' contain the necessary reference to specifically defined sexual conduct. Within the limits set by our past decisions, the Miller case and its companions established no new constitutional obstacles. The Supreme Court of the United States now construes Federal obscenity statutes so as to conform to the Miller standard. United States v. 12 200-Ft. Reels of Super 8 MM. Film, 413 U.S 123, 130, fn. 7, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973). It clearly indicates that 'existing state statutes, as construed heretofore or hereafter, may well be adequate.' Miller v. California, 413 U.S. at 24, fn. 6, 93 S.Ct. at 2615. We should follow the lead of the Supreme Court of the United States and construe our Massachusetts statutes to conform to the Miller standard.

The opinion of the court does not discuss the specific results they are reaching in the name of 'freedom of speech' and the need for 'guidance' to our...