Sedelbauer v. State
| Decision Date | 02 April 1980 |
| Docket Number | No. 3-1179A302,3-1179A302 |
| Citation | 402 N.E.2d 1006 |
| Parties | Alan H. SEDELBAUER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Opinion on rehearing, 405 N.E.2d 566.
K. Richard Payne, Fort Wayne, Robert Eugene Smith, Atlanta, Ga., for appellant.
Theodore L. Sendak, Atty. Gen., Thomas D. Quigley, Deputy Atty. Gen., Indianapolis, for appellee.
Appellant Sedelbauer was convicted on two (2) counts of Distributing Obscene Matter for Consideration in violation of IC 35-30-10.1-2(2), sentenced on both counts to thirty (30) days imprisonment and fined Three Thousand Dollars ($3,000.00). He appeals arguing that the giving of court's instruction no. 12 was error. We agree and reverse.
The instruction complained of reads as follows:
In determining the question of whether the allegedly obscene matter or performance involved, taken as a whole, lacks serious literary, artistic, political, or scientific value, the jury may consider whether the matter or performance has been pandered, by looking to the circumstances of distribution, sale, advertisement, or editorial intent, and particularly whether such circumstances indicate that the matter or performance was being commercially exploited for the sake of its prurient appeal and whether any social importance claimed was in the circumstances pretense or reality.
Such evidence is probative with respect to the nature of the matter or performance, and if the jury concludes that the sole emphasis was in the sexually provocative aspect, this can justify the conclusion that the matter or performance is lacking in serious literary, artistic, political, or scientific value.
The weight, if any, which such evidence is entitled is a matter for the jury to determine.
The appellant contends that the evidence did not warrant giving this instruction and that it is misleading.
The evidence which the State urges as sufficient to justify giving the instruction is as follows:
(1) Sedelbauer was engaged in a business
(2) selling textual or graphic matter
(3) the sign on the front window of the business recited "Swingers World Book Store," "Films, Peep Shows."
"Pandering" is defined by the United States Supreme Court as "the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of the customers." Pinkus v. United States, (1978) 436 U.S. 293, 98 S.Ct. 1808, 56 L.Ed.2d 293. It is also a crime in Indiana, that being the conduct of procuring, or offering or agreeing to procure any person for another person for the purpose of prostitution. IC 1976, 35-45-4-4(2) (West 1978). A panderer is defined by Webster's Third New International Dictionary 1629 (1976) as
(a) a go between in love intrigues;
(b) a man who solicits clients for a prostitute a procurer;
(c) someone who caters to and often exploits the weaknesses of others.
No definition was given to the jury. The instruction is incomplete as "pandering" is a word of art which has special meaning depending upon which definition is applicable. Obviously, Sedelbauer was not a pimp. He was a clerk whose only act was to recite the price of the films when asked by the undercover vice squad officers. The...
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Sedelbauer v. State
...Court, Allen County, on two counts of distributing obscene matter for consideration. The Court of Appeals reversed his conviction. 402 N.E.2d 1006. Opinion on Rehearing, 405 N.E.2d 566. We grant transfer in this case, set aside the opinion of the Court of Appeals, and sustain the decision o......