Smith v. Com.

• Decision Date: 26 February 1971
• Citation: 465 S.W.2d 918
• Parties: James W. SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 918

465 S.W.2d 918

James W. SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

Feb. 26, 1971.

Rehearing Denied May 14, 1971.

Larry D. Raikes, Hodgenville, for appellant.

John B. Breckinridge, Atty. Gen., Robert V. Bullock, Asst. Atty. Gen., Frankfort, for appellee.

DAVIS, Commissioner.

A jury found appellant guilty of knowingly distributing obscene matter, as denounced by KRS 436.101, and fixed the punishment at a fine of $1,000. Attacking the judgment of conviction, appellant contends that (1) KRS 436.101 is unconstitutional for its failure to prescribe that proscribed material must be 'utterly without redeeming social value'; (2) a directed verdict of acquittal was improperly denied; (3) the instructions were erroneous; and (4) the prosecution should have been dismissed because no adversary hearing had been held previously for the purpose of determining contemporary standards applied by the average person in the community and customary limits of candor in the community.

A state trooper paid the appellant $2,50, plus tax, for one copy of a magazine captioned 'After Hours.' ¹ The magazine was openly displayed on a rack in a rural grocery near Elizabethtown. Comic books and routine publications were offered for sale on the same rack, all of the material available to the general public, including minors. The publication, in magazine format, contains about seventy pages inside the front and back covers.

The first 'article' in the publication is titled 'The Hole Affair.' Its text is illustrated by seven photographs, six of which feature the naked female pubic area. These pictures are posed with the woman's legs spread wide apart, so that the subject's pubic hair and vaginal area are given central emphasis.

The next article bears the caption 'Take Your Pants Off.' A female called 'Kate' is revealed in ten photographs. In only one is she clothed. The other pictures show her in varying positions, some of which find her supine on a bed, with her legs widespread and her naked privates depicted in sharp focus. In one scene the motif remains, but the posture is varied to the extent that 'Kate' is squatted upon her knees and elbows, presenting a close posterior view of her naked parts.

In an article labeled 'Ready to Eat,' accompanied by eleven pictures of naked women, the theme is varied to suggest cunnilinguism and fellatio.

Following that appears 'Bar Belle's Organ.' This is a short piece, consisting of four frontal views of 'Belle,' alternately posed before a bar and a portable organ. Although the background is varied, the frontal view remains unchanged, as each presents the female, naked, legs wide apart, genitalia featured in close focus. The text is brief, consisting only of: 'You don't have to be a musician to play my organ.'

Next appears the topic 'Any Time Baby,' featuring numerous photographs of a female in poses substantially the same as already described.

The 'piece de resistance' is the doublepage, color photograph of a naked woman lying on her buttocks, legs upraised and widely parted, featuring the distended external orifice of her genital canal. Following that are more articles and photographs, all in the same theme. Some of the stories are entitled: 'Eve,' 'Sucker,' 'Wet Dream,' and 'Get Into Me.' Sandwiched among these items appears a story called 'Shark Shark.' This opus purports to relate scientific information about sharks, and is in no sense obscene. It appears as an awkward effort to inject some redeeming value, when its purpose is to provide a subterfuge. Considering the magazine as a whole, the net effect of 'Shark Shark' is zero.

In Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, Mr. Justice Stewart, in an often-recalled separate concurring opinion, wrote of 'hard-core pornography':

'I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.' Id. 84 S.Ct. at 1683, 12 L.Ed.2d at pp. 803--804.

The members of this court deem the material contained in the issue of 'After Hours' under consideration to be 'hardcore pornography.' Without professing expertise equal to that of Mr. Justice Stewart, the court regards its ken in the premises as adequate for the purpose at hand. The Supreme Court has specifically held that obscenity is not within the freedom of speech and press protection of the First Amendment, United States Constitution. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. 'Hard-core pornography' is obscenity, thus beyond the penumbra of the First Amendment.

KRS 436.101 is not constitutionally infirm by reason of its failure to require that material be 'utterly without redeeming social value' before falling within its proscription. This court so held in Cain v. Commonwealth, Ky., 437 S.W.2d 769. Although the Supreme Court reversed the judgment in Cain (after the trial of the present case in circuit court), the reversal appears to rest solely on the Supreme Court's determination that the material in question was not obscene. Cf. Cain v. Kentucky, 397 U.S. 319, 25 L.Ed.2d 334, 90 S.Ct. 1110 (1970). As noted by counsel, there are decisions rejecting the view...