People v. Sikora

• Decision Date: 21 January 1965
• Docket Number: No. 38583,38583
• Citation: 32 Ill.2d 260,204 N.E.2d 768
• Parties: The PEOPLE of the State of Illinois, Appellee, v. June SIKORA, Appellant.
• Court: Illinois Supreme Court

Page 768

204 N.E.2d 768

32 Ill.2d 260

The PEOPLE of the State of Illinois, Appellee, v. June SIKORA, Appellant.

No. 38583.

Supreme Court of Illinois.

Jan. 21, 1965.

As Modified on Denial of Rehearing March 17, 1965.

Paul C. Ross, Chicago (Harry S. Weber, Chicago, of counsel), for appellant.

William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Atty., Chicago (Fred G. Leach and George W. Kenney, Asst. Attys. Gen., and Elmer C. Kissane and James R. Thompson, Asst. State's Attys., of counsel), for appellee.

SCHAEFER, Justice.

The defendant, June Sikora, was indicted by the grand jury of Cook County for the offense of obscenity, committed by the sale of obscene books. She pleaded not guilty and waived a jury trial. She was tried before a judge, found guilty and fined $1000, and now appeals directly to this court. Questions arising under the constitutions of the State and of the United States are involved.

Before turning to the defendant's contentions that neither the obscene quality of the books in question nor her knowledge of their contents was sufficiently proved, we shall consider first her contentions that the statutory definition of obscenity, as well as certain statutory provisions relating to the admissibility of evidence, are unconstitutional. The statute defines obscenity as follows: 'A thing is obscene if considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters.' Ill.Rev.Stat.1963, chap. 38, par. 11-20. (Italics supplied.)

In the face of this language, it is the defendant's position that 'This section states that something would be obscene (1) if a thing as (sic) considered as a whole its predominant appeal is to prurient interest in nudity, sex or excretion or (2) goes substantially beyond customary limits of candor.' This statement ignores the fact that the statute uses the conjunctive 'and' rather than the disjunctive 'or.' The defendant advances no reasons to support a disjunctive construction. Apparently her argument rests upon the fact that the Model Penal Code of the American Law Institute, in its proposed official draft, underscored the conjunctive purpose by changing the simple but explicit 'and', which appeared in earlier drafts, to read 'and if in addition.' The comments to the proposed official draft of the Model Penal Code make it clear that no change in substance was intended (Model Penal Code, Tentative Draft No. 6, p. 1; Proposed Official Draft, 237, 240.) Moreover, the joint committee which drafted the proposed Illinois Criminal Code of 1961 stated in its comments: 'Under subsection (b) material must appeal to sexual interest (or interest in nudity or excretion), but it must also go beyond customary limits of candor in the description in such things.' Tentative Final Draft of the Proposed Illinois Criminal Code of 1961, p. 275.

The defendant also contends that paragraphs (c)(1), (c)(2), (c)(3), (c)(4) and (c)(5) of section 11-20 of the Criminal Code of 1961, which specify kinds of evidence that are admissible in an obscenity prosecution, are unconstitutional. These provisions are:

'(c) Interpretation of Evidence.

'Obscenity shall be judged with reference to ordinary adults, except that it shall be judged with reference to children or other specially susceptible audience if it appears from the character of the material or the circumstances of its dissemination to be specially designed for or directed to such an audience. In any prosecution for an offense under this Section evidence shall be admissible to show:

'(1) The character of the audience for which the material was designed or to which it was directed;

'(2) What the predominant appeal of the material would be for ordinary adults or a special audience, and what effect, if any, it would probably have on the behavior of such people;

'(3) The artistic, literary, scientific, educational or other merits of the material, or absence thereof;

'(4) The degree, if any, of public acceptance of the material in this State;

'(5) Appeal to prurient interest, or obscene (sic probably should read 'absence.' See par. (3) above.) thereof, in advertising or other promotion of the material; * * *.' Ill.Rev.Stat.1963, chap. 38, par. 11-20.

No evidence was received or offered which would suggest that the books in question were addressed to a special audience, and so no issue arising under paragraph (c)(1) or (c)(2) is presented in this case. No evidence was reviewed or offered under paragraph (c)(3), but this paragraph presents a different problem, since under Roth v. United States, 354 U.S. 476, 484-485, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and Jacobellis v. United States, 378 U.S. 184, 191, 84 S.Ct. 1676, 12 L.Ed.2d 793, the social importance of the material in question is significant in any obscenity case.

The defendant contends that paragraph (c)(3) 'is unconstitutional because it attempts to set out a rule for a particular type of evidence which is irrelevant in nature and the proof or lack of proof of which would have no bearing on the determination of whether or not the allegedly obscene material is obscene.' This contention is unsound. Evidence of the presence or absence of 'artistic, literary, scientific, educational or other merits' of the material in question is relevant because, as pointed out in the opinion of Mr. Justice Brennan in the Jacobellis case 'obscenity is excluded from the constitutional protection only because it is 'utterly without redeeming social importance,' * * *. It follows that material dealing with sex in a manner that advocates ideas, Kingsley Int'l Pictures Corp. v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512, or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection.' (378 U.S. at 191, 84 S.Ct. at 1680.) Not only is evidence admissible as to the social importance of the allegedly obscene materials; a determination as to the presence or absence of social importance is essential to a judgment. And if, as in this case, no evidence bearing upon that issue is offered, the determination must be made from an examination of the material in question.

Paragraph (c)(4) relates to the admissibility of evidence as to '(t)he degree, if any, of public acceptance of the material in this State.' The comparable provision of the Model Penal Code refers to the admissibility of evidence to show 'the degree of public acceptance of the material in the United States' and the comments state that this kind of evidence is relevant 'to show that the material went beyond 'customary limits of candor. " (Model Penal Code, Proposed Official Draft, p. 239; Tentative Draft No. 6, p. 44.) Whether a State standard, which paragraph (c)(4) appears to sanction, would be constitutional has not yet been determined by the Supreme Court. Some of the justices would clearly favor a national standard; others would clearly favor a local standard; and still others adhere to an approach to first amendment problems that has made it unnecessary for them to consider the question. We need not now resolve this issue, for in the case before us no evidence of any local standard or of statewide acceptance was offered or received, and the trial judge appraised the books in question in terms of 'contemporary community standards in the United States today.'

Evidence was received under paragraph (c)(5), concerning the appeal 'to prurient interest, or obsecene (absence) thereof, in advertising or other promotion of the material.' But this evidence, which will be described, was clearly admissible upon the issue of scienter. Whether or not it was admissible as tending to show the obscene character of the books themselves is therefore of no consequence. McCormick on Evidence, sec. 59.

The defendant's contention that her knowledge of the obscene quality of the books was not established requires a review of the evidence on that issue. Most of the evidence was stipulated. The defendant was one of three partners who owned Selective Paperbacks, a retail bookseller, and she managed the business. Selective solicited orders by sending out descriptive flyers. One flyer listing 'Original Nightstand Books' announced 'NO orders sent through the U. S. Mail.' Another stated, '27 Newstand books not listed on this sheet have been banned from the mails-if, on quantity orders of 25 or more, you would like us to substitute we will up to 10 per...