Mitchum v. State

• Decision Date: 12 August 1971
• Docket Number: No. N--506,N--506
• Citation: 251 So.2d 298
• Parties: Robert MITCHUM et al., Appellants, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 298

251 So.2d 298

Robert MITCHUM et al., Appellants, v. STATE of Florida, Appellee.

No. N--506.

District Court of Appeal of Florida, First District.

Aug. 12, 1971.

Paul Shimek, Jr., Pensacola, for appellants.

Earl Faircloth, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.

SPECTOR, Chief Judge.

This is the second interlocutory appeal brought by appellants to review a second order restraining appellants from selling or offering for sale certain named magazines or other publications of the same or similar character.

The order under review was entered in connection with the enforcement of Chapter 847, Florida Statutes, F.S.A., the state obscenity and pornography laws. Earlier decisions have been rendered by this court in this case which are reported at 234 So.2d 420, 237 So.2d 72, and 244 So.2d 159. Reference to these decisions will afford additional factual background which may be of interest to the reader.

The first point on appeal is as follows: 'The State of Florida must produce affirmative evidence that the publications alleged to be obscene are, in fact, obscene, otherwise the order declaring obscenity is a judicial nullity.'

The proposition of law raised by the point must be rejected. As stated, it reflects a basic confusion on appellants' part as to the distinction between a void judgment, order or decree and one which is merely voidable. For the order under review herein to be held a nullity, it must be shown that the court below was without power or jurisdiction to enter it. And it has ever been so. See Ponder v. Moseley et al., 2 Fla. 207 (1848), where the court at page 267 approved the rule laid down in Elliott et al. v. Peirsol, et al., 1 Pet. 328, 340, 7 L.Ed. 164, that "(When) a court has jurisdiction (of the person and subject matter), it has a right to decide every question which occurs in the cause, and whether (this) decision be correct or otherwise, its judgment until reversed is regarded as binding in every other court." And, further, 2 Fla. at pages 267--268: 'The foregoing authorities as well as many others not supposed necessary to be referred to, clearly show that judgments of courts of general or competent jurisdiction (as is the court below), are not considered under any circumstances as mere nullities, but as records importing absolute verity and of binding efficacy, until reversed by a competent appellate tribunal. * * *' See also Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926).

In light of the well settled principle of law discussed above, appellants' contention that the order reviewed herein is a nullity is obviously based on euphoric optimism which is wholly unsupported by any authority. Examination of appellants' argument under this point indicates that the real issue raised is the contention that the absence of testimonial evidence, separate and apart from the magazines themselves considered as exhibits, renders the order of the lower court prejudicially erroneous and therefore reversible.

In support of the latter proposition, appellants rely heavily on Justice Frankfurter's concurring opinion in Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205, reflecting his view, not that of the court, that expert testimony is necessary to a finding of obscenity by a court. That view being found only in a concurring opinion is, of course, not binding upon us as precedent nor are the holdings in the obscenity cases from several of our sister states which require testimonial evidence as a predicate for a finding of obscenity necessarily binding on this court. We have read them, of course, and while they appear sound and scholarly, they simply do not reflect our view of the law relating to the subject matter. In essence, those cases encroach upon the entire concept of judicial notice as approved by our courts as well as those of other jurisdictions. Long ago, it was held that in proper circumstances 'judicial notice' is superior to evidence since it fulfills the object which evidence is designed to fulfill and makes evidence on the point established by judicial notice unnecessary. Amos v. Moseley, 74 Fla. 555, 77 So. 619. It is defined as the cognizance of certain facts which judges and jurors may properly take and act upon without proof, because they already know them. United States v. Hammers, D.C., 241 F. 542. Courts are presumed to know what everyone knows, 13 Fla.Jur., Evidence § 14. Thus, the question resolves itself into whether the materials here involved are of such character as to establish circumstances whereunder the court may determine the obscenity question without evidence.

We hold that the materials herein are 'hardcore pornography' and therefore within the rule announced in United States v. Wild, 422 F.2d 34 (2d Cir.1970), cert. denied 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d 152, reh. den. 403 U.S. 940, 91 S.Ct. 2242, 29 L.Ed.2d 720. There the government introduced no evidence other than the materials themselves which was claimed to be error. In rejecting the contention, the Court of Appeal reviewed the pertinent cases and held as follows:

'We do not believe, as appellants in effect urge, that the Constitution requires the Government to produce expert testimony about appeal to the prurient interest and contemporary community standards in every obscenity case. Compare Frankfurter, J., concurring in Smith v. California, 361 U.S. 147, 164--167, 80 S.Ct. 215, 4 L.Ed.2d 205, With Harlan, J., concurring in part and dissenting in part, Id., at 170--171, 80 S.Ct. 215. It is clear that such testimony can be necessary on certain facts such as those presented in United States v. Klaw, 350 F.2d 155 (2d Cir. 1965), heavily relied on by appellants. However, the present case presents no such peculiar problems of proof.

'We hold that in cases such as this the trier of fact needs no expert advice. As noted above, there was no claim of redeeming social importance. Cf. United States v. A Motion Picture Entitled 'I Am Curious-Yellow,' 404 F.2d 196 (2d Cir. 1968). One group of slides graphically depicts a sexual act and the other group focuses attention on the erect genitalia of the nude male models. In this context, the issues of prurient appeal and offensiveness to contemporary community standards can be dealt with by a jury without expert help. As the Supreme Court has stated, 'in the cases in which this Court has decided obscenity questions since Roth, (Roth v. United States, 354 U.S. 478, 77 S.Ct. 1304, 1 L.Ed.2d 1498) it has regarded the materials as sufficient in themselves for the determination of the question.' Ginzburg v. United States, 383 U.S. 463, 465, 86 S.Ct. 942, 944, 16 L.Ed.2d 31 (1966). Simply stated, hard core pornography such as this can and does speak for itself. (Emphasis supplied.)

'In a remarkably similar case in which a conviction under section 1461 was unanimously affirmed, Judge Prettyman wrote:

"Most of the difficulty which enshrouds the discussion of the law concerning obscenity and filth develops upon consideration of books and magazine articles. Here arise problems of scienter, the meaning and effect of the whole, the value of the work to proper interests of the public, the contemporary community standards in similar matters, and other baffling problems under our precious right of free speech, discussed in several opinions in Smith v. California. (361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205) But we have no such problem in the case at bar. These are stark, unretouched photographs--no text, no possible avoidance of scienter, no suggested proper purpose, no conceivable community standard which would permit the indiscriminate dissemination of the material, no alleviating artistic overtones. These exhibits reflect a morbid interest in the nude, beyond any customary limit of candor. They are 'utterly without redeeming social importance.' * * *

"We think that photographs can be so obscene--it is conceivably possible that they be so obscene--that the fact is uncontrovertible. These photographs are such. United States v. Womack, (Womack v. United States), 111 U.S.App.D.C. 8, 294 F.2d 204, 205--206 (footnote omitted), cert. denied 365 U.S. 859, 81 S.Ct. 826, 5 L.Ed.2d 822 (1961).'

'See also, Kahm v. United States, 300 F.2d 78 (5th Cir.), cert. denied 369 U.S. 859, 82 S.Ct. 949, 8 L.Ed.2d 18 (1962); United States v. Davis, 353 F.2d 614 (2d Cir. 1965), cert. denied 384 U.S. 953, 86 S.Ct. 1567, 16 L.Ed.2d 549 (1966). Cf. Manual Enterprises v. Day, 370 U.S. 478, 489--490 and n. 13, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962) (opinion of Harlan, J.). Judge Bonsal's charge to the jury properly defined obscenity in light of the relevant Supreme Court cases; the jury was capable of applying those tests to this material.

'Finally, we note that appellants' own evaluation of the slides confirms the finding of appeal to the prurient interest. Mishkin v. New York, 383 U.S. 502, 508, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966); Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31 (1966). In considering the slides, the jury had before it brochures which the appellants had mailed out along with sample slides. These advertisements seem to us to constitute the type of pandering which is relevant to a determination of obscenity. Although appellants contend that Judge Bonsal's charge on the issue of pandering was improper, no such objection was made to this portion of the charge at trial and we need not consider it here. United States v. Re, 336 F.2d 306, 316 (2d Cir.), cert. denied, 379 U.S. 904, 85 S.Ct. 188, 13 L.Ed.2d 177 (1964). Fed.R.Crim.P. 30.' 422 F.2d at 35--37.

The above views expressed by the court in Wild were adopted by this court in the informative opinion of this court in Collins v. State Beverage Department, 239 So.2d 613 (Fla.App.1970). It is clear then that the rule in this jurisdiction is that if the materials before the court are what is termed 'hardcore pornography' no testimonial evidence is necessary to support a finding...