Dillingham v. State, 314

• Decision Date: 15 July 1970
• Docket Number: No. 314,314
• Citation: 267 A.2d 777,9 Md.App. 669
• Parties: Joseph Brinton DILLINGHAM v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 669

9 Md.App. 669 267 A.2d 777 Joseph Brinton DILLINGHAM
v.
STATE of Maryland. No. 314. Court of Special Appeals of Maryland. July 15, 1970.
Certiorari Denied Oct. 20, 1970.

Page 670

[267 A.2d 778] Joseph Forer, Washington, D. C., for appellant.

Robert A. DiCicco, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., William A. Linthicum, Jr., State's Atty., and Barry .h. Helfand, Asst. State's Atty., for Montgomery County on brief, for appellee.

Argued before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

THOMPSON, J.

Joseph Brinton Dillingham, the appellant, was convicted under Art. 27, § 418 of the Md. Code which prohibits the sale, exhibition, etc. of obscene pamphlets or drawings. He was originally convicted in the People's Court for Montgomery County. On appeal to the Circuit Court for Montgomery County, he was again convicted by a jury in a de novo trial. We granted certiorari. Dillingham contends the evidence did not establish the required elements of obscenity; since we agree with this contention, it will be unnecessary for us to consider the other contentions.

On March 21, 1969, appellant was arrested in front of the Montgomery County Police Headquarters for selling a detective an issue of the Washington Free Press newspaper, Vol. 2, No. 52, March 15-31, 1969. On page three of the issue, at the top of the page in bold block letters approximately one inch high, there is the headline 'Dear Judge Pugh' and in smaller print 'pages 9-15'. On page nine of the issue, in white letters approximately one and one-eighth inch high, on a black background, there is the headline 'A Pornobiography.' In the lower center portion of that page, there is a cartoon approximately four and one-quarter inches square which shows a nude human figure (purported to be Judge James H. Pugh of

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the Circuit Court for Montgomery County) masturbating. The cartoon shows the human figure sitting on a large chair with a swastika on it, in front of a podium or lectern on which are hanging various items such as a hypodermic needle and a whip. The entire cartoon, including the human figure, is a line-type drawing, beying very simple artistically and out of natural proportions. The human figure is abstract in an artistic sense, bearing only moderate resemblance to actual human form. The limbs and general anatomy are out of proportion, there is no hair on the head, and the face is expressionless. Above the figure but within the four and one-quarter inch sequare of the cartoon is [267 A.2d 779] the caption 'HE' COMM D'JUDGE' (sic). Surrounding the cartoon in a box ten inches by four and three-quarter inches is a biography of personal facts concerning Judge Pugh, e.g. club memberships, home address, and alleged conflicts of interests. Surrounding the cartoon and biographical material on the rest of the page is a critique in hostile terms of Judge Pugh in his professional capacity; the entire page measures seventeen inches by approximately eleven and one-half inches. Page nine is one of twenty-four pages in the total newspaper. Pages 10 to 15 are apparently intended as a continuation of the critique of the judicial system in general begun on page nine. A summary of the newspaper and the expert testimony is shown in the appendixes.

In applying § 418 of Art. 27, Md. Code, the proper criteria to determine obscenity is outlined in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. In reference to that test, this Court stated in Donnenberg v. State, 1 Md.App. 591 at 597-598, 232 A.2d 264 at 268-269:

'We understand the Roth-Alberts definition of obscenity-'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest'-as reiterated in Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, elaborated

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in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, adjusted in Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, (16 L.Ed.2d 56) and summarized in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General, (the Fanny Hill decision) 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 establishes the following test for obscenity:

'Three elements must coalesce; it must be established that:

'1) The dominant theme of the material taken as a whole appeals to a prurient interest in sex.

a) where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient- appeal requirement is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group.

'2) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters.

'3) The material is utterly without redeeming social value.

Each of the above three federal constitutional criteria must be applied independently and neither be weighed against nor canceled by any of the others.

a) As an aid to determining the question of obscenity, the setting in which the material was presented may be considered. Thus evidence of pandering-'the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest-is relevant' and 'where a purveyor's

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sole emphasis is on the sexually provocative aspects of his publications, a court could accept his evaluation on its face value."

It has been uniformly recognized by this Court, the Court of Appeals and the United States Supreme Court that the reviewing court has the obligation to make an independent, reflective constitutional judgment on the facts. Jacobellis v. Ohio, supra; Wagonheim v. Maryland State Board of Censors,255 Md. 297, 258 A.2d 240; Sanza v. Maryland State Board of Censors, 245 Md. 319, 226 A.2d 317; Levin v. State, 1 Md.App. 139, 228 A.2d 487; Donnenberg v. State, supra, Lancaster v. State, 7 Md.App. 602, 256 A.2d 716.

[267 A.2d 780] I 'Taken As A Whole'

In making a constitutional judgment, this case demands special analysis of the requirement that the allegedly obscene material be 'taken as a whole.' There may be some question as to what is the proper 'whole', but there is general agreement that consideration of the 'whole' is not restricted to the first test set out above. The annotation in 5 ALR 3d 1158 'Modern Concept of Obscenity' at 1178-1179 summarizes the situation:

' § 7. Judging material 'as a whole'

'(a) Generally

'The earlier standard under which obscenity could be judged by the effect of an isolated excerpt taken from a book or other writing was rejected in the Roth Case, (supra) which requires that material challenged as obscene must be judged 'as a whole.'

'(b) Where text is accompanied by illustrations

'Whether illustrations challenged as obscene may be considered apart from the accompanying text seems a question which depends upon the circumstances of the individual case. In any

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event, at the present time there is not sufficient authority on the point to make it possible to state generalized rules.'

While the Supreme Court has never defined 'whole' specifically, in Roth v. United States, supra and Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31, the Court cites with apparent approval the trial court's approach that the allegedly obscene item must be considered in its entire context which is, at an apparent minimum, the physical item itself. In Roth, 354 U.S. at 490, 77 S.Ct. at 1312, the Court approves the trial court's instructions:

"The books, pictures and circulars must be judged as a whole, in their entire context, and you (the trier of fact) are not to consider detached or separate portions in reaching a conclusion."

Thus, insofar as the Supreme Court has considered the issue, it seems they intend the trier of facts to consider at least the entire physical item that is allegedly obscene.

Cases from the Maryland Court of Appeals provide more guidance. In Monfred v. State, 226 Md. 312, 173 A.2d 173 (1961) cert. den. 368 U.S. 953, 82 S.Ct. 395, 7 L.Ed.2d 386, the Court specifically considered the textual material in conjunction with the illustrations. With regard to one set of exhibits the Court said at 226 Md. at 317, 173 A.2d at 174-175:

'* * * the pictures, even though obviously intended to arouse sex appeal, are not strictly obscene. And, which is more to the point with respect to the issue of obscenity, the textual matter accompanying the illustrations is in the main innocuous. Instead, it purports to discuss in detail the technique of using shadows and lights in photographing the nude. Therefore, since this magazine taken as a whole is not obscene, we

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think the trial court also erred in convicting (the defendants) for selling it.'

See also Yudkin v. State, 229 Md. 223, 182 A.2d 798.

In obscenity cases this Court has in each considered at least the entire physical item before deciding the issue of obscenity. In Levin v. State, supra, the question involved three sets of three photographs. While the Court did not view every photograph, it did review a photograph introduced as representative of the set from which it came; there was no accompanying text. In Donnenberg v. State, supra, the Court specifically considered the five and one-half pages of 'pseudo-intellectual' text accompanying the illustrations. In Lancaster v. State, supra, this Court viewed the entire film; the film contained no auditory or textual portion.

[267 A.2d 781] Thus, the rule appears to be established in Maryland that the trier of fact and the reviewing appellate court must consider at least the entire physical item that is allegedly obscene before deciding whether the entire physical item constitutes a proper 'whole' and before deciding obscenity.

A similar approach is used by other state and federal decisions which recognize that the...