People v. Ridens, s. 43974
| Citation | 282 N.E.2d 691,51 Ill.2d 410 |
| Decision Date | 21 March 1972 |
| Docket Number | Nos. 43974,44449,s. 43974 |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. Frank C. RIDENS et al., Appellants. The CITY OF MOLINE, Appellee, v. Larry WALKER, Appellant. |
| Court | Supreme Court of Illinois |
Rehearing Denied May 25, 1972.
Donald M. Reno, Jr., of Reno, O'Byrne & Kepley, Champaign (Stanley J. Kipczyski, Moline, and Angelo P. Bruscato, Rockford, of counsel), for appellants.
John Donald O'Shea, Corp. Counsel, East Moline, for City of Moline.
William J. Scott, Atty. Gen., Springfield and Philip C. Reinhard, State's Atty., Rockford , for the People.
The appeals of Frank C. Ridens and Marilyn Keckler, a/k/a Norma Keckler from the judgments of the circuit court of Winnebago County and of Larry Walker from the judgment of the circuit court of Rock Island County, have been consolidated for argument and opinion. They raise identical issues pertaining to the sale of allegedly obscene books. The publications involved were purchased by police officers from the defendants, Ridens and Keckler, in Rockford, and from the defendant, Walker, in Moline. Both Walker and Ridens owned the stores at which the respective publications were purchased. Marilyn Keckler was an employee of Ridens and operated a second store which was owned by him.
The defendants, Ridens and Keckler, were charged in two separate complaints with violating the Illinois obscenty provisions of the Criminal Code (Ill.Rev.Stat.1969, ch. 38, par. 11--20(a)(1)) by selling or delivering certain allegedly obscene magazines entitled 'Jaybird Scene No. 4,' 'New Cover Girl,' 'Female Photographs,' 'Fun and Games,' 'Secret Affair,' 'Lovers,' and 'Teenage Jaybird.' The complaints against them were based upon the purchase of the magazines by the police officers of the city of Rockford. The defendants entered pleas of not guilty, waived trial by jury, and then filed motions to dismiss on the grounds that no adversary hearing on the question of obscenity prior to arrest was afforded them; that if obscene, the distribution of such publications to adults is constitutionally protected; that section 11--20(b) of the Code (Ill.Rev.Stat.1969, ch. 38, par. 11--20(b)) is constitutionally infirm because it is vague and uncertain and fails to follow the decisions of the United States Supreme Court in its definition of obscenity; and that the complaint failed to state a criminal offense.
These motions were denied and the defendants were tried by the court. The only evidence introduced by the State pertained to the purchase of the offensive books and to the ownership of the Rand J. Book Stores by the defendant Ridens. The defendants were found guilty at the conclusion of all of the evidence. The defendant Ridens was sentenced to 60 days in jail and to pay a fine in the sum of $4,000, and the defendant Keckler, his employee, was sentenced to 10 days in jail and fined $400.
The defendant, Walker, was charged in one complaint with having violated the Moline Obscenity ordinance by selling an allegedly obscene magazine entitled 'Tit Bits,' and in a second complaint with selling another such obscene magazine entitled 'Jaybird Era.' He pleaded not guilty, waived trial by jury, and then filed a motion to dismiss each complaint in that these prosecutions violated his rights under the first, fifth and fourteenth amendments to the United States constitution and the complaints did not follow the guidelines established by the United States Supreme Court in obscenity cases, and, therefore, they failed to state a cause of action. Following the denial of his motion, the police officers of the city of Moline testified that they purchased the magazines in question, and the offending magazines themselves were admitted in evidence. The city however, offered no expert or opinion evidence relating to community standards of obscenity. At the conclusion of the city's evidence, the defendant offered one nonexpert witness, whose testimony was of little value, in an attempt to establish that the magazines were in accord with the community standards of the city of Moline. The court found the publications to be obscene under the city ordinance, and fined the defendant the city ordinance, and fined the defendant $1,000.
The defendants have raised the same issues in both appeals. Their attacks upon the Moline Obscenity ordinance and the Criminal Code obscenity provisions (Ill.Rev.Stat.1969, ch. 38, pars. 11--20 through 11--22) may be disposed of rather summarily since we have previously held both to be constitutionally sound. See: City of moline v. Walker, 49 Ill.2d 392, 274 N.E.2d 9 (Moline ordinance), and People v. Sikora, 32 Ill.2d 260, 204 N.E.2d 768 (the Criminal Code obscenity provisions). The Moline ordinance incorporates the obscenity standards established in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. City of Moline v. Walker, 49 Ill.2d 392, 396, 397, 274 N.E.2d 9.
Section 11--20(b) of the Criminal Code defines obscenity as follows: (Ill.Rev.Stat.1969, ch. 38, par. 11--20(b).) Under Roth, the materials must be 'utterly without redeeming social value.'
Section 11--20(c)(3) provides that in any prosecution for an offense under this section, evidence shall be admissible to show '(t)he artistic, literary, scientific, educational or other merits of the material, or absence thereof'; and section 11-21(b)(1) defines harmful material as follows: 'Material is harmful if, to the average person, applying contemporary standards, its predominant appeal, taken as a whole, is to prurient interest, that is a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters, And is material the redeeming social importance of which is substantially less than its prurient appeal.' (Emphasis ours.) Section 11--21(c) provides, among other things, that: 'In prosecutions under this section, where circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate the material is being commercially exploited for the sake of its prurient appeal, Such evidence is probative with respect to the nature of the material and can justify the conclusion that the redeeming social importance of the material is in fact substantially less than its prurient appeal.' (Emphasis ours.)
In view of these provisions, we hold that the Criminal Code obscenity provisions equate the Roth requirement that the obscenity must be 'utterly without redeeming social importance.' Also see: City of Chicago v. Kimmel, 31 Ill.2d 202, 204, 205, 201 N.E.2d 386.
The defendants further claim that the obscenity ordinance and the Code provisions are deficient because they should require proof...
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