Rachleff v. Mahon
| Decision Date | 29 November 1960 |
| Docket Number | No. C-33,C-33 |
| Citation | 124 So.2d 878 |
| Parties | Jacob M. RACHLEFF, doing business as Jake's News Stand, Appellant. v. Lacy MAHON, Jr., Solicitor of the Criminal Court of Record in and for Duval County, Florida, Appellee. |
| Court | Florida District Court of Appeals |
Arthur J. Gutman, Jacksonville, for appellant.
Lacy Mahon, Jr., Jacksonville, for appellee.
This is an appeal from a declaratory decree of the Circuit Court of Duval County, which adjudicated certain magazines obscene under Ch. 847, F.S., 1959, F.S.A. Appellee as County Solicitor of Duval County filed a petition in the Circuit Court under the provisions of this statute to have the Court determine whether certain magazines and periodicals being sold and distributed by appellee were in fact obscene, it being the duty of the County Solicitor to prosecute persons selling and distributing obscene magazines and periodicals. The statute referred to makes it unlawful, among other things, for any person to possess, sell, distribute, show or transmit any obscene book, magazine, periodical, pamphlet, etc., or any form of reproduction or any representation devoted principally to the presentation and exploitation of illicit sex, passion, depravity or immorality. The statute further provides that it shall not apply to any periodical or other printed matter having United States second class mailing privileges, or to any periodical or printed matter which may be legally sent through the United States mail, until such time as the same has been determined by a court of competent jurisdiction of this state to be obscene, and authorizes the County Solicitor of any county in which the sale or distribution of such material occurs to institute a declaratory proceeding to have the Court determine whether it is in fact, obscene. If it is declared obscene then any person thereafter possessing such periodical or printed matter is subject to prosecution and punishment under the statute. The appellee listed twenty-six periodicals and magazines which he alleges the appellant was distributing and selling in Duval County, ranging in name from 'Shape', 'Sizzle', 'Harem', 'Exotic Adventures', to 'Wolf Bait', and 'Feminine Form'. Appellee alleges that such periodicals were in fact, obscene, but that he was unable to determine whether they could be legally sent through the mails within the meaning of Chapter 847, and that he could not prosecute defendant criminally until and unless the Court declared such magazines and periodicals to be obscene. Upon application by appellant for a more definite statement the appellee furnished a list of the issues of such periodicals and magazines complained of, and they were made a part of the complaint as Exhibits A to Z. No application was made by either party for a jury trial and the matter was heard by the Court, sitting both as judge of the law and facts. At the trial evidence was offered by appellee to prove possession and sale by the appellant of the periodicals and magazines in question.
No testimony was presented by appellee to prove contemporary community standards by which the obscene character of the publications could be judged. Appellant offered no evidence on the issue of obscenity. At the conclusion of the hearing, the Court entered its order holding twenty of the publications in question obscene, and six not obscene.
No jury trial having been requested, the trial judge held that--sitting as trier of the facts--he applied the test of obscenity set forth in the case of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498, of '* * * whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest * * *', and concluded the twenty publications obscene when measured by that test.
Appellant has raised several points on this appeal, the first of which is that the lower court erred in not dismissing the complaint for failure to state a cause of action because it alleged only that the publications attached to the complaint as exhibits were obscene without alleging any facts to support the conclusion. We do not think this point well founded. The term 'obscene' has a definite connotation and to allege that a certain printed matter is obscene is to plead not only a conclusion of law, but also of fact, and when the publication complained of is attached to and made a part of the complaint as were the ones involved here, this is sufficient to state a cause of action as against a motion to dismiss. It is for the trier of the facts--in this case the trial judge--to determine whether or not the publications are in fact obscene. State v. Clein, Fla., 93 So.2d 876, and cases cited therein. We agree with the trial court that the proper test of obscenity is that set forth in the Roth case, supra.
Appellant next contends that the lower court erred in not dismissing the complaint because the alleged publishers of the publications were not joined as parties defendant. We hold with the trial court that although under the Declaratory Decree Statute, F.S., Ch. 87.10, F.S.A., such publishers might have been proper parties to the proceeding, they are not necessary and indispensable parties. Under the very terms of the statute, Ch. 847.01(1)(c), an adjudication that the publications in question are obscene does not affect the 'rights' of such publishers, for prosecution under the statute can operate only prospectively, and not retroactively, as of the time of such adjudication. Furthermore, the provisions of Ch. 87.10 by their very terms preclude prejudice to the rights of persons not parties to the proceedings. We cannot see how the joinder of such publishers was necessary to determine the issue of obscenity, or the right of appellant to possess, sell or distribute the publications. And, finally, if the publications are found to be in fact obscene neither the appellant nor such publishers would have any 'rights' in such publications for any owncrship of or dealing with them would be illegal. And if found not obscene, the whole issue becomes moot.
A third point raised by appellant is the refusal of the trial court to require appellee to answer certain interrogatories. These interrogatories sought to elicit from appellee a statement concerning each publication as to which page, section or part thereof he directed the allegation of obscenity in the complaint. The trial court held that inasmuch as...
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