People v. Bloss

• Decision Date: 29 July 1969
• Docket Number: No. 3,Docket No. 4587,3
• Citation: 171 N.W.2d 455,18 Mich.App. 410
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Floyd G. BLOSS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 455

171 N.W.2d 455

18 Mich.App. 410

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Floyd G. BLOSS, Defendant-Appellant.

Docket No. 4587.

Court of Appeals of Michigan, Division No. 3.

July 29, 1969.

Rehearing Denied Sept. 5, 1969.

Released for Publication Oct. 29, 1969.

John W. Piggott, Thompson, McCormick & Piggott, Bay City, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, James K. Miller, Rpos. Atty., Kent County, Grand Rapids, for plaintiff-appellee.

Before QUINN, P.J., and HOLBROOK and T. M. BURNS, JJ.

T. M. BURNS, Judge.

The defendant appeals his conviction and sentence under C.L.1948, § 750.343a as amended by P.A.1964, No. 143 (Stat.Ann.1969 Cum.Supp. § 28.575(1)) for showing an obscene movie entitled 'A Woman's Urge' at the Capri Theatre which he operated in the city of Grand Rapids.

The pertinent facts are set forth in the trial judge's decision on the motion for new trial:

'The testimony at the trial indicated that 'A Woman's Urge' was shown at the Capri Theatre from February 2 to February 8, 1966. On the evening of February 3, 1966, certain police officers and officials of the city of Grand Rapids, together with professors from Calvin and Aquinas Colleges, attended the showing of 'A Woman's Urge'. Thereafter a meeting was held at the prosecuting attorney's office and on the evening of February 8, 1966, members of the vice squad purchased tickets for the showing of 'A Woman's Urge' and saw the entire film. Immediately thereafter, two members of the vice squad, who had seen the movie, went to the project booth, there found Billy C. Sturgess in the projection booth, rewinding the film to 'A Woman's Urge'. The officers identified themselves and arrested Mr. Sturgess and seized the film incidentally to the arrest. Thereafter they permitted Mr. Sturgess to continue showing the motion picture which was then being shown and subsequently brought him to the police department where he was served with a complaint and warrant. Likewise a complaint and warrant were served upon Mr. Bloss, who came to the police department at the request of the police officers. At the trial several police officers testified in detail as to the movie and applied the 'Roth test' to the movie. In addition an expert witness from Aquinas College was called who testified relative to the movie and applied the Roth test. The jury, after extensive deliberation, convicted Mr. Bloss.'

The defendant objected at trial to the admission in evidence of the film which he alleges was seized in violation of the Fourth and Fourteenth Amendments of the United States Constitution. The film was admitted over his objection and the jury found him guilty. The judge acquitted the projectionist.

Defendant asserts that the applicable statute (P.A.1964, No. 143 (C.L.1948, § 750.343a (Stat.Ann.1969 Cum.Supp. § 28.575(1)))) ¹ is unconstitutional because it is vague and indefinite. Clearly it is with in the power of the legislature to enact such a statute, as obscenity is not within the area of protected speech or press under the First Amendment. Roth v. United States (1957), 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Ginsberg v. New York (1968), 390 U.S. 629, 635, 88 S.Ct. 1274, 20 L.Ed.2d 195. People v. Villano (1963) 369 Mich. 428, 120 N.W.2d 204, which concerned the prior statute to which only the element of knowledge was added, indicates that the statute is not unconstitutionally vague in the eyes of the

Supreme Court of Michigan. After a careful analysis of the statute we find that it is not vague in the constitutional sense.

Certainly, however, it has been established that motion pictures are protected by the constitutional guarantees of freedom of speech and press unless they are obscene. Joseph Burstyn, Inc. v. Wilson (1952), 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098; Kingsley International Pictures Corp. v. Regents (1959) 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512; Jacobellis v. Ohio (1964), 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793. Therefore, only if a motion picture is obscene can it be seized.

The people assert that this determination of obscenity can be initially made by the police. The people further assert that when an officer believes a film to be obscene a misdemeanor is being committed in his presence and that, consequently, he has a right to seize the film as evidence without first getting a warrant.

The defendant asserts that under the circumstances in this case it was not lawful for the officers to make an arrest for a claimed misdemeanor committed in their presence. Defendant also advances the theory that inasmuch as the officers had to make a determination as to whether or not a misdemeanor was being committed in their presence that it was necessary to show that they were thoroughly acquainted with the test set down in the case of Roth v. United States, Supra. The people assert that the officers were adequately informed as to the tests to be applied and knew what had to be considered in order to determine that the film was obscene. In the criminal jurisprudence of our State it is not required that a police officer have a court determination as to the legality of an act before he makes an arrest. We do not think the case of Lee Art Theatre, Inc. v. Virginia (1968), 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313, cited by defendant, wherein the Court seems to require some sort of an adversary hearing on questions of obscenity before a search warrant may be issued, is controlling in this case. Here the three officers, who had paid admission and entered the theatre in the line of duty, were faced with a situation in which they had probable cause to believe a crime was being committed in their presence. They were dutybound to act.

The police officer arrests upon his own determination that a crime has been or is being committed in his presence. It is then for the court on the trial of the case to determine if the act charged is punishable.

From a careful review of the record we are satisfied that the officers who made the arrest did so after viewing the entire movie and they had sufficient information as to the tests to be applied in order to judge the film obscene. We conclude that the arrest was legal and the seizure of the film was reasonable and lawful, being contemporaneous with a proper arrest. 2 Gillespie, Michigan Criminal Law and Procedure (2d ed.), § 875. People v. Gonzales (1959), 356 Mich. 247, 97 N.W.2d 16.

We must decide, therefore, whether the film is obscene in the constitutional sense as delineated by the Supreme Court of the United States. See Roth v. United States, Supra; Redrup v. New York (1967), 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515; A Book Named 'John Cleland's Memoris of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts (1966), 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1; Ginzburg v. United States (1966), 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31; Mishkin v. New York (1966), 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56. For us to find that this movie is obscene, we must find that the dominant theme of the movie as a whole appeals to prurient interest in sex, that it is patently offensive because it goes beyond contemporary community standards relating to the description or representation of sexual matters, and that it is utterly without redeeming social value. Roth v. United States, Supra. Unless we find that these three elements coalesce, we cannot find that it is obscene. A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts, Supra, 383 U.S. p. 419, 86 S.Ct. 975. We viewed the film, and we find the necessary coalescence here. Therefore, we find the film to be obscene.

The film deals with the problems of a seemingly oxersexed young woman. Although it has a psuedo-psychoanalytical approach, its primary appeal is to a prurient interet in sex. This prurient appeal is the dominant theme of the movie as a whole. The film is utterly without redeeming social value. Further, we find that it goes beyond the contemporary national community standards in its descriptions and representations of sexual matters. We would note here that in making this decision as to whether this film goes beyond the contemporary standards, we took into consideration not just the content of the film but also the impact of the conditions under which this content is conveyed to the viewer. By this we mean that even though the acts and occurrences if they were described in the written word would not be obscene, the visual impact of seeing the same thing acted out in a darkened room...