Hewitt v. Maryland State Bd. of Censors
Decision Date | 03 February 1966 |
Docket Number | No. 467,467 |
Parties | William E. HEWITT t/a Rex Film Distributors v. MARYLAND STATE BOARD OF CENSORS. |
Court | Maryland Court of Appeals |
Richard C. Whiteford, Baltimore, for appellant.
Fred Oken, Asst. Atty. Gen., Baltimore (Thomas B. Finan, Atty. Gen. on the brief), Baltimore, for appellee.
Before PRESCOTT, C. J., and HORNEY, MARBURY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.
On 26 October 1965 the appellant, William E. Hewitt (Hewitt), submitted to the appellee, Maryland State Board of Censors (Board, for examination and licensing, pursuant to the provisions of Code Art. 66A, § 19 (1957, Cum.Supp.1965), a film entitled 'This Picture Is Censored.' On 4 November the Board filed the required petition in the Circuit Court of Baltimore City, stating that, after viewing the film, it had been disapproved in accordance with the provisions of § 6 of the Art. 66A, supra, upon the following finding:
'After reviewing the entire film, and considering it as a whole, the Board finds that the film goes substantially beyond customary limits of candor in description and representation of sex, that it deals purposely and effectively with sex in a manner which appeals to the prurient interest, that it is without social importance, and that it lacks any identifiable artistic, cultural, thematic or other value which might be considered redemptive.'
Hewitt in his answer, filed 9 November, denied the legal correctness of the Board's finding and asserted as affirmative defenses
(a) that the action of the Board violates the First and Fourteenth Amendments to the Federal Constitution;
(b) that Code Art. 66A is unconstitutional as written, construed and applied;
(c) that the film is not obscene.
Although the petition was filed in one of the Equity Courts, the case was assigned, for trial, to Judge Byrnes who was then sitting in the Court of Common Pleas, Part II, one of the Law courts. Early in the forenoon of 8 November Judge Byrnes addressed the full panel of jurors (25 in number) assigned to his court. The nature and extent of his preliminary remarks are unknown to us as they were not taken down by the reporter. The reported part, which omissions of no significance, is as follows:
'Two, does this film go substantially beyond customary limits of candor in description or representation of sex or other matters dealt with? * * *
'Three, is this film--of course, your answer is entirely your own thought; you can answer yes or no to these questions--is this film utterly without social importance in that it advocates ideas which have no literary, scientific, or artistic value, or any other form of social importance?
'So each one will get this form, and you will answer them.' (Emphasis supplied.)
Judge Byrnes said the jurors were taken to the Board's office to view the film 'entirely at * * * [his] own initiative and at no one's suggestion.' Upon their return to the courtroom Judge Byrnes again spoke to the jurors:
* * *
* * *
On 10 November, Judge Byrnes presided at a conference in his chambers attended by Mr. Richard C. Whiteford, counsel for Hewitt, Mr. Fred Oken, Assistant Attorney General, counsel for the Board, and the court reporter. The conference, which had been requested by Mr. Whiteford, began at 9:45 A.M.
Mr. Whiteford asked Judge Byrnes to state 'what has happened to date in this case.' Judge Byrnes replied:
* * *
* * *
'(Mr. Whiteford) Am I to understnad that you have reviewed these various questionnaires which the panel has returned to you?
'(The Court) Yes. * * *.'
Mr. Whiteford thereupon moved for a mistrial and requested Judge Byrnes to disqualify himself. The motion was overruled and the request denied. Judge Byrnes then announced his intention to introduce the statements of the jurors into evidence and asked counsel to suggest an expeditious way of doing this. Mr. Whiteford indicated his 'vigorous objection' and again complained that neither he nor his client had any notice of the proceedings on 8 November and that his first knowledge of what took place was gleaned from the newspapers. Mr. Oken took the position that neither Mr. Whiteford nor Hewitt was entitled to notice. The judge agreed.
The Board then produced six witnesses who testified, over objection, and generally in response to leading questions, that in their opinion the film was obscene and without social importance. Selected apparently by the Board, they were (in the order in which they were called) a Jewish rabbi, a Catholic priest, the adjutant of the American Legion, a probation officer, a consultant to the juvenile court, and a Protestant minister.
At the conclusion of the testimony Judge Byrnes instructed the jurors to stand and they 'were then duly sworn according to law.' They were thereupon questioned as follows:
'(The Court) Now, has each member seen the picture 'This Picture Is Censored'?
'(Jurors) Yes, sir.
'(The Court) You saw the picture at the invitation of the Court?
'(Jurors) Yes, sir.
'(Jurors) Yes, sir.
'(The Court) You all have done that?
'(Jurors) Yes, sir.
'(The Court) The Court also told you he wanted your honest opinion without any thought from the Court as to what your opinion should be?
'(Jurors) Yes, sir.
'(Jurors) Yes.'
Mr. Whiteford registered his objection to the court's action, as follows:
'(The Court) You formally make a motion to that effect?
'(Mr. Whiteford) Yes, sir.
'(The Court) I overrule the motion.'
The questionnaires signed by the 25 jurors were then offered in evidence by Mr. Oken and Mr. Whiteford again objected. Judge Byrnes overruled the objection and admitted the 25 questionnaires into evidence. ...
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