People v. Wasserman

• Decision Date: 01 October 1970
• Docket Number: No. 3,Docket No. 7830,3
• Citation: 183 N.W.2d 313,27 Mich.App. 16
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James WASSERMAN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 313

183 N.W.2d 313

27 Mich.App. 16

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James WASSERMAN, Defendant-Appellant.

Docket No. 7830.

Court of Appeals of Michigan, Division No. 3.

Oct. 1, 1970.

Released for Publication Feb. 12, 1971.

Joseph C. Legatz, Bridges & Collins, Negaunee, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Calvin L. Bosman, Pros. Atty., James W. Bussard, Sp. Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and BRONSON and MUNRO, ^* JJ.

HOLBROOK, Presiding Judge.

Defendant was convicted in the circuit court for Ottawa county before a jury of distributing a lewd, obscene, indecent and filthy article in a weekly college newspaper of which he was the editor, contrary to M.C.L.A. § 750.343a (Stat.Ann.1970 Cum.Supp. § 28.575(1)).

Defendant was sentenced to pay costs of $100.00 and after denial of his motion for a new trial, has appealed to this Court.

The statute under which defendant was convicted and the test to be applied to determine obscenity is stated as follows:

'Any person who knowingly either sells, lends, gives away, distributes, shows or transmutes or offers either to sell, lend, give away, distribute, show or transmute, or has in his possession with intent either to sell, lend, give away, distribute, show or transmute, or advertise in any manner, or who otherwise knowingly offers for either loan, gift, sale or distribution, any obscene, lewd, lascivious, filthy or indecent, sadistic or masochistic book, magazine, pamphlet, newspaper, story paper, Writing, paper, phonograph record, picture, drawing, photograph, motion picture film, figure, image, wire or tape recording or any Written, printed or recorded Matter of an indecent character which may or may not require mechanical or other means to be transmuted into auditory, visual or sensory representations of such character, shall be guilty of a misdemeanor, and upon conviction shall be punished by imprisonment in the county jail for not more than 1 year or by a fine of not more than $1,000.00, or by both such fine and imprisonment.' (Emphasis supplied). M.C.L.A. § 750.343a (Stat.Ann.1970 Cum.Supp. § 28.575(1)).

'The test to be applied in cases under section 343a of this act shall not be whether sexual desires or sexually improper thoughts would be aroused in those comprising a particular segment of the community, the young, the immature or the highly prudish, or would leave another segment, the scientific or highly educated or the so-called worldly wise and sophisticated, indifferent and unmoved. But such test shall be the effect of the book, picture or other subject to complaint considered as a whole, not upon any particular class, but upon all those whom it is likely to reach, that is, its impact upon the average person in the community. The book, picture or other subject of complaint must be judged as a whole in its entire context, not by considering detached or separate portions only, and by the standards of common conscience of the community of the contemporary period of the violation charged.' M.C.L.A. § 750.343b (Stat.Ann.1970 Cum.Supp. § 28.575(2)).

There is no question as to the fact that the defendant was the editor and caused to be distributed the newspaper and the article in question, 'A Typical Day in the Life of J. Oswald Jones.'

Defendant raises two issues on appeal which we restate as follows:

1. Whether the criminal obscenity statute permits the selection of one story from the challenged material, a newspaper, and the submission of that one story to the jury apart from the newspaper as a whole?

2. Was the story, 'A Typical Day in the Life of J. Oswald Jones', obscene in the constitutional sense?

Defendant does not contest the fact that the statute fully complies with the constitutional requirements as set forth in Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.

I

The newspaper as a whole consists of four pages. The writing involved as charged in this offense appears on the last page and is entitled 'A Typical Day in the Life of J. Oswald Jones' (J. Oswald Jones, an autobiography) by James Wasserman. In addition to this article, on the last page are three poems and an advertisement of one of the theatres. The story is complete in itself, does not refer to any other part of the newspaper and we conclude that under the language of the statute that the story in question was a 'writing' complete in itself and is not saved from prosecution because of other material printed in the newspaper which may not be objectionable.

II

No objections have been made to the instructions of the court to the jury and therefore we consider the matter properly submitted for determination. In Roth v. United States, Supra, the law on obscenity is thoroughly considered and is applicable to the case herein. Obscenity is not protected by the First Amendment to our Federal Constitution. A reiteration of the story in question in this opinion would not be of benefit to the decision nor to those who might read it. Suffice it to say that we agree with the trial judge in his ruling on the motion for a new trial wherein he stated:

'In the opinion of the court there was ample room for the decision of the jury on the facts.'

In the case of A Book Named 'John Cleland's Memoirs' v. Massachusetts (1966), 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, obscenity was defined as follows at p. 418, 86 S.Ct. p. 977:

'We defined obscenity in Roth in the following terms: 'Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' 354 U.S., at 489, 77 S.Ct. at 1311, 1 L.Ed.2d at 1509. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.'

After reading the story, 'A Typical Day in the Life of J. Oswald Jones', we are constrained to rule that the trial judge was correct and that there was ample evidence presented to the jury for them to determine the defendant guilty of the offense charged.

Affirmed.

BRONSON, Judge (dissenting).

I am unable to agree with the decision reached by my colleagues. In deciding whether the article in question is 'obscene in the constitutional sense', this Court is obliged to make a judgment Independent of the jury's verdict....