Gerstein v. 'Pleasure Was My Business'
| Decision Date | 18 December 1961 |
| Docket Number | Nos. 61-660,61-661,s. 61-660 |
| Parties | Richard E. GERSTEIN, as State Attorney of the Eleventh Judicial Circuit in and for Dade County, Florida, Appellant, v. 'PLEASURE WAS MY BUSINESS,' as a book, and Aram P. Goshgarian, as an individual, the Bookworm, Inc., a corporation, Herbert Cream, Ed Lewen, also known as Edward Lewen, and Harold Lewen, as individuals, and S. Robert Tralins as an individual, and Lyle Stuart, as an individual, Appellees. S. Robert TRALINS, Appellant, v. Richard E. GERSTEIN, as State Attorney of the Eleventh Judicial Circuit in and for Dade County, Florida, Appellee. |
| Court | Florida District Court of Appeals |
Glenn C. Mincer and N. Joseph Durant, Jr., Miami, for Richard E. gerstein.
Sheldon R. Rosenthal, Tobias Simon, Howard W. Dixon, Daniel Ginsberg and N. J. Durant, Miami, for 'Pleasure Was My Business' and others.
Before PEARSON, TILLMAN, C. J., and HORTON and BARKDULL, JJ.
In case #61-660, appellant Gerstein seeks review of an order denying his motion for a summary decree in an action seeking to have the book 'Pleasure Was My Business' declared obscene within the meaning of § 847.01, Fla.Stat., F.S.A. It should be noted that we are not here called upon to decide the effect on this or similar cases of Chapter 61-7, Laws of Florida, Regular Session, 1961, which was passed while this action was pending and which repealed § 847.01, Fla.Stat., 1959.
The trial court stated in its order that it was prevented from entering a summary decree by the presence of a genuine issue of material fact, the obscene character of the book, which it felt should be judged by the court sitting as a trier of fact upon the presentation of testimony of expert witnesses to establish and prove the contemporary community standards in Dade County by which obscenity should be measured.
The determinative question here is whether the trial court erred in denying the state's motion for summary judgment. We hold that it did not.
It was within the province of the court, as trier of the facts, to determine the contemporary community standards by which obscenity should be measured and apply them to the questioned publication. It was equally within its province to seek aid, in the form of expert testimony, in making this determination. See State v. Clein, Fla.1957, 93 So.2d 876; Rachleff v. Mahon, Fla.App.1960, 124 So.2d 878.
In case #61-661, appellant Tralins contends that it was error...
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Meyer v. Austin
...of Appeal approved a holding that "contemporary community standards" meant the "standards in Dade County," Gerstein v. Pleasure Was My Business, 136 So.2d 8, 9 (Fla. 3d D.C.A., 1962), and affirmed a decree applying such standards, Tralins v. Gerstein, 151 So.2d 19 (Fla. 3d D.C.A., 1963). Th......
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...is had to the criminal prosecution. See State v. I, a Woman--Part II (1971), 53 Wis.2d 102, 191 N.W.2d 897; Gerstein v. 'Pleasure Was My Business' (Fla.App.1961), 136 So.2d 8. In the present status of this action, the parties involved are certainly adverse. Just as clear is the respondents'......
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State v. Reese
...had already been adopted by the courts of this state. See Rachleff v. Mahon, Fla.App.1st 1960, 124 So.2d 878; Gerstein v. 'Pleasure Was My Business,' Fla.App.3d 1961, 136 So.2d 8. Subsection (10) is clearly severable from the remainder of the Act under well established rules and the severab......
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Corinth Publications, Inc. v. Wesberry, 23227
...other grounds, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809); Rachleff v. Mahon (Fla.App.1960) 124 So.2d 878; Gerstein v. 'Pleasure Was My Business,' (Fla.App.1961) 136 So.2d 8; Zeitlin v. Arnebergh, 59 Cal.2d 901, 31 Cal.Rptr. 800, 383 P.2d 152 (certiorari denied by the Supreme Court of the......