Levin v. State

• Decision Date: 10 April 1967
• Docket Number: No. 54,54
• Citation: 228 A.2d 487,1 Md.App. 139
• Parties: Arthur LEVIN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 139

1 Md.App. 139

228 A.2d 487

Arthur LEVIN v. STATE of Maryland.

No. 54.

Court of Special Appeals of Maryland.

April 10, 1967.

Certiorari Denied June 13, 1967.

Gordon H. Levy, Baltimore, Gordon H. Levy, Baltimore, on the brief, for appellant.

Fred Oken, Asst. Atty. Gen., Baltimore, Robert C. Murphy, Former Atty. Gen., Fred Oken, Asst. Atty. Gen., Charles E. Moylan, Jr., State's Atty., Frank DeCosta, Asst. State's Atty., for Baltimore City; Baltimore, on the brief, for appellee.

Before ANDERSON, MORTON, ORTH, MacGILL (specially assigned), and JENIFER (specially assigned), JJ.

ORTH, Judge.

Appellant, owner and operator of the 'Baltimore Book Bizarre' (sic), a book store located at 224 West Baltimore Street in Baltimore City, was convicted by the Criminal Court of Baltimore, of violating Code (1966 Cum.Supp.) Article 27, section 418(a), which makes it a misdemeanor for any person to 'knowingly * * * sell * * * any lewd, obscene, or indecent * * * photograph.' The subject matter of the prosecution was three sets of photographs, from which three photographs and the receipt for the purchase price were admitted in evidence without objection. The photographs, three to a set, were on the counter of the store. Two sets were purchased for $5,00 each and the third for $4.00 by a member of the Baltimore Police Department, Rackets Division. The photographs in evidence are of one type, each being of a young man, two being completely naked, the third wearing only an undershirt. Each man is distinguished by a large penis in full erection. In one photograph, the subject, in profile, is fondling his penis, in another the subject, in profile, is reclining on his back and in the third the subject is standing full face to the camera. Appellant concedes the photographs are utterly without redeeming social value, but urges that the State has not established that the other two elements set forth under the Roth-Alberts test of obscenity coalesce. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), reiterated in Jacobellis v. State of Ohio, 378 U.S. 184, 84 S.Ct. 1976, 12 L.Ed.2d 793 (1964), 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 (1966). These two elements are (a) the dominate theme of the material taken as a whole appeals to a prurient interest in sex, and (b) the material is patently offensive becaue it material is patently offensive because it relating to the description or representation of sexual matters. The court denied a motion for judgment of acquittal at the conclusion of the State's case and the defense proffered no testimony. Appellant. in effect, contends:

i) The evidence was not legally sufficient to support the conviction.

ii) The statute under which appellant was charged and convicted is unconstitutional for failure to require scienter.

Embraced in the first contention are two questions presented by appellant:

a) Should the lower court have granted the appellant's motion for judgment of acquittal?

b) Did the lower court correctly apply the controlling law as set out in Roth v. United States, supra, as elaborated and in one respect adjusted by Miskin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966)?

To sustain the conviction under Code, Article 27, section 418(a), the words 'lewd,' 'obscene,' and 'indecent' must be defined under the standards set forth in Roth-Alberts and the photographs must be found to be obscene by those standards. We feel that the Maryland Legislature intended, by its use of these words in the statute, what the words meant in prevailing leading legal thought. Since these cases were tried by the court sitting without a jury, we have the right to review them on both the law and evidence to determine whether in law the evidence was sufficient to sustain the conviction, though we may not set aside the verdict on the evidence unless it is clearly erroneous. Maryland Rule 1086; Monfred v. State, 226 Md. 312, 173 A.2d 173 (1961); Yudkin v. State, 229 Md. 223, 182 A.2d 798 (1962). However, we are mindful of our obligation to make a reflective independent judgment on the facts of the case and that ordinarily neither the judge who may sit in the lower court nor the judges of this Court would be qualified to determine whether the photographs fail to meet the standards laid down in Roth-Alberts without enlightening testimony. Sanza v. Maryland State Board of Censors, Md., 226 A.2d 317, September Term, 1966, filed February 8, 1967. See also the dissenting opinion of Judge (now Chief Judge) Hammond in Monfred v. State, supra. But we feel that the photographs in the instant case, which are conceded to be without redeeming social value, are such as to which no proof, other than the viewing of them, is required to determine that they are, in fact, obscene. Dunn v. Maryland Board of Censors, 240 Md. 249, 213 A.2d 751 (1965). The exhibits of the allegedly obscene material speak for themselves and must in every case be perused and examined with care. We have done so and find them to be hard-core pornography. This does not mean that other competent evidence to show them to be not obscene should be excluded as irrelevant or immaterial. Yudkin v. State, supra. Chief Justice Warren, in the dissenting opinion in Jacobellis v. State of Ohio, supra, in which Justice Clark joined, observed that hard-core pornography is difficult to define. In the same case, Justice Potter Stewart, who feels that only hardcore pornography may be proscribed under the First Amendment, said that perhaps he could never intelligently describe the kinds of material embraced within the term but that he knows it when he sees it. Footnote 4 in the dissenting opinion of Judge Hammond in Monfred v. State, supra, sets forth the description of hardcore pornography given by the Solicitor General of the United States:

'This is commercially produced material in obvious violation of present law * * *. There is no desire to portray the material in pseudo-scientific or 'arty' terms.'

He quotes D. H. Lawrence who wrote in Pornography and Obscenity in Sex Literature and Censorship (1953):

'But even I would censor genuine pornography, rigorously. It would not be very difficult. In the first place, genuine pornography is almost always underworld, it doesn't come into the open. In the second, you can recognize it by the insult it offers, invariably, to sex, and to the human spirit.

'Pornography is the attempt to insult sex, to do dirt on it. This is unpardonable. Take the very lowest instance, the picture postcard sold underhand, by the underworld, in most cities. What I have seen of them have been of an ugliness to make you cry. The insuit to the human body, the insult to a vital human relationship! Ugly and cheap they make the human nudity, ugly and degraded t...