Court v. State

• Decision Date: 29 June 1971
• Docket Number: No. 36,36
• Parties: Eugene COURT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. State Supreme Court of Wisconsin
• Court: Wisconsin Supreme Court

Page 475

188 N.W.2d 475

51 Wis.2d 683

Eugene COURT, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

State No. 36.

Supreme Court of Wisconsin.

June 29, 1971.

The judgment which is reviewed herein found the defendant, Eugene Court, guilty of violating sec. 944.21(1)(a), Stats., for selling and possessing for sale obscene magazines. The complaint alleged that on March 21, 1969, the defendant, the owner of a book store in the city of Appleton, sold three allegedly obscene magazines to one Robert F. Schreiter. The magazines were entitled, 'Lasses and Glasses,' 'Cocktails,' and 'Affair.'

A preliminary hearing was held in the Outagamie county court. Following the hearing, defendant's counsel moved to dismiss on the grounds that the complaint did not state probable cause and that the evidence adduced at the preliminary hearing was not sufficient for a bindover to circuit court for trial. The prosecution amended the complaint. The motion to dismiss the amended complaint was denied, and the defendant was bound over to the circuit court for trial.

A motion to dismiss was denied in the circuit court, as was a motion for change of venue. The defendant elected to waive his constitutional right to a jury trial, but the district attorney refused to consent to such waiver. Testimony was taken on the motion for a change of venue, and that motion was also denied.

Following a trial to a jury, a verdict of guilty was returned on October 16, 1969. The defendant was adjudged guilty on October 29, 1969, and was fined $500 plus costs or forty-five days in the county jail. Execution of the sentence was stayed. Motions after verdict were apparently made by the defendant and denied by the trial court. The record, however, does not reveal the proceedings on motions after verdict.

Upon the defendant's petition, a writ of error was issued by this court.

Gordon Myse, Appleton, for plaintiff in error.

Robert W. Warren, Atty. Gen., William F. Eich, Asst. Atty. Gen., Madison, for defendant in error.

HEFFERNAN, Justice.

The defendant's initial objection was raised prior to the completion of the preliminary examination and is raised again on this appeal: That the complaint did not charge a crime because the complaint did not allege that the publications considered as a whole were obscene and that the complaint did not allege the element of scienter. The pertinent part of the amended complaint charged that the defendant:

'* * * did feloniously and intentionally sell and have in his possession for sale obscene or indecent pictures, to-wit: three (3) publications entitled 'Affair,' 'Lasses & Glasses' and 'Cocktails', contrary to Section 944.21(1)(a) of the Wisconsin Criminal Code.'

We are satisfied from a reading of the complaint that the allegation was that the magazines, when considered in their entirety, were obscene and was not merely that individual pictures printed therein were obscene.

Scienter is, of course, a necessary element of the crime of sale or possession for sale of obscene materials, and it must be alleged in the criminal complaint. Smith v. California (1959), 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, and State v. Chobot (1960), 12 Wis.2d 110, 106 N.W.2d 286. Scienter was sufficiently alleged. Scienter is the knowledge or awareness of the nature of the materials alleged to be obscene.

Sec. 939.23(3), Stats., defines the word, 'intentionally.' As so defined, it means that a defendant '* * * must have knowledge of those facts which are necessary to make his conduct criminal * * *.' The phrase, 'feloniously and intentionally,' used in the complaint, under the statutory definition, constitutes a sufficient allegation of an element of scienter. The complaint was not insufficient.

Additionally, the defendant contends that he ought not to have been bound over to circuit court for trial, since the evidence was insufficient to prove probable cause. We disagree. While it could be argued that the evidence adduced at the preliminary examination was insufficient to prove the charges against the defendant beyond a reasonable doubt, this burden of proof is not imposed upon the state in a preliminary examination. State ex rel. Marachowsky v. Kerl (1951), 258 Wis. 309, 45 N.W.2d 668. A defendant may be bound over for trial to a court of general jurisdiction when from the evidence presented at a preliminary hearing it appears probable that a crime has been committed and that the defendant has probably committed it. State ex rel. Wojtycski v. Hanley (1945), 248 Wis. 108, 20 N.W.2d 719, sec. 954.13(1), 1967 Stats. We are satisfied that the evidence adduced at the preliminary examination met the standards required to prove probable cause.

There was testimony that the three magazines in question were purchased from 'The Book Seller,' which the defendant owned and operated. They were stapled shut and were placed on display in a section of the store designated, 'You must be 21 to purchase.' These facts give rise to the reasonable inference that the defendant was aware of the contents of the books, and the evidence was sufficient for the magistrate to have found that there was probable cause to determine that the defendant was aware of the contents of these particular magazines as required by Smith v. California, supra.

The defendant also argues that probable cause was not proved in the preliminary examination, because the state failed to produce sufficient evidence that the publications violated community standards of candor. We are satisfied that a perusal of the three magazines was sufficient for the committing magistrate to arrive at the inference that the materials were obscene and not in conformity with community standards. The defendant was properly bound over for trial.

The defendant also contends that this court, as a matter of law, should conclude that the magazines in question are not obscene. The defendant relies upon descriptions of the contents of publications not found to be obscene by various courts throughout the United States and therefore argues that since those publications, which defendant contends are more offensive than the ones before this court, have not been held to be obscene, that this court should, as a matter of law, reach the same conclusion in the instant case. We consider this yardstick inappropriate for precedential purposes for the same reason that we refuse to rely on damages awarded in one case as a standard to be used in a subsequent case. The subjective nature of the material as well as the subjective conduct of the respective defendants requires an individual analysis in each case. We do not believe that courts, by finding particular materials obscene or not obscene, have set the guidelines for a subjective determination that other materials are obscene. The most that can be gleaned from these prior cases is that courts have attempted to set legal standards of an objective nature which must be applied in each case. The verbalization of the nature of an alleged piece of obscenity or the mode of describing a piece of obscenity is, like beauty, the product of the eye of the beholder. We are satisfied that any description of the magazines that are the subject of this litigation would merely reflect the predelictions and the anathemas of the judge writing this opinion and would be no more accurate than the descriptions that are contained in the cases upon which the defendant relies. We refuse to use the subjective description of obscenity in prior cases as an objective standard to determine whether the items before us are obscene. The reader of this opinion would have a true appraisal even of the nature of these magazines only if we were to publish them in extenso as an appendix to our reports. This we obviously refuse to do. We quote the defendant's brief for a description of the magazines involved in this appeal:

'The publications in question in the instant case disclose nude female models during some occasions engaged in horse play with other female or male models. The breasts are freely revealed and in many instances, pubic hair can be seen. In all but a few photographs, however, the female genitalia is not prominently displayed or the focal point of the picture. The male genitalia are not generally exposed although the male models are nude or seminude.'

We will supplement this description only by pointing out that, in addition to the pictures described by the defendant, the magazines contain short articles of fiction in which the emphasis is upon violence and death and a series of incidents involving unconventional sexual relations under threat of death and culminating in the shooting and killing of the unwilling sex partner. They recount episodes of sexual abuse and murder. It is apparently these articles that the defendant asks that we consider, in addition to the photographs, to show the overall redeeming social value of these magazines.

We are satisfied that, in applying what we understand to be the applicable standards, this court cannot say, as a matter of law, the magazines are not obscene.

In Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, the

United States Supreme Court held that obscenity did not fall within the First Amendment protection of freedom of speech and press. The obscenity test of Roth was capsulized in a plurality opinion written by Mr. Justice Brennan in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts (1966), 383 U.S. 413, 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1. Three elements were there held to be essential to find material obscene and therefore not within the ambit of First Amendment protections. The three elements there stated were:

'(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation...