State ex rel. Londerholm v. A Quantity of Copies of Books

• Decision Date: 14 July 1966
• Docket Number: No. 44513,44513
• Parties: STATE of Kansas ex rel. Robert C. LONDERHOLM, Appellant and Cross-Appellee, v. A QUANTITY OF COPIES OF BOOKS, Appellees and Cross-Appellants, Francis G. Vater and Joe Rector, Jr., Co-partners, doing business as Rector's Book Store, Wichita, Kansas, Intervenors-Appellees and Cross- Appellants.
• Court: Kansas Supreme Court

Page 703

416 P.2d 703

197 Kan. 306

STATE of Kansas ex rel. Robert C. LONDERHOLM, Appellant and Cross-Appellee, v. A QUANTITY OF COPIES OF BOOKS, Appellees and Cross-Appellants, Francis G. Vater and Joe Rector, Jr., Co-partners, doing

business as Rector's Book Store, Wichita, Kansas,

Intervenors-Appellees and Cross- Appellants.

No. 44513.

Supreme Court of Kansas.

July 14, 1966.

Syllabus by the Court

In a proceeding in rem for the confiscation of eleven named paperback books, the record of trial is examined and held: The trial court did not err in denying a request for jury trial or in overruling a motion to quash the information and to dismiss the proceeding upon constitutional grounds; and held further, upon an independent review of the entire record, the trial court erred in its order finding the books not to be obscene and therefore not subject to seizure.

Richard H. Seaton, Asst. Atty. Gen., argued the cause, and Robert C. Londerholm, Atty. Gen., and Park McGee, Asst. Atty. Gen., were with him on the briefs, for appellant and cross-appellee.

William I. Robinson, Wichita, argued the cause, and Mark H. Adams, Charles E. Jones, J. Ashford Manka, Clifford L. Malone, Mark H. Adams, II, John S. Seeber, Floyd E. Jensen, Philip L. Bowman, and Robert Hall, Wichita, were with him on the briefs for intervenors-appellees and cross-appellants, Joe Rolston, Wichita, Stanley Fleishman and Sam Rosenwein, Burbank, Cal., of counsel.

HARMAN, Commissioner.

At issue here is the liability to state seizure and destruction of eleven allegedly obscene books in an in rem action brought pursuant to K.S.A. 21-1102c.

On July 24, 1964, the then attorney general of kansas filed in the court below an information alleging that copies of the books in question were being kept for sale at Rector's Book Store in Wichita; that they were obscene and thus in violation of K.S.A. 21-1102. The information requested that an order be issued to the owners of the books to show cause why a warrant for seizure of these books should not issue. A copy of each book was filed with the information. The same day the judge of division No. 2 of said court entered an order that any person having any interest in said books should appear and show cause why a warrant should not be issued directing the seizure of said books by the sheriff of said county, and setting a hearing thereon on July 31, 1964.

On July 31, 1964, the owners of the book store intervened and moved to (1) quash the information and to dismiss the proceedings, (2) for a jury trial and (3) for a continuance of the hearing on the merits. The first two motions were overruled and the latter was granted. The owners then moved that the judge of division No. 2 disqualify himself in the case because it appeared from the show cause order issued by him that he had read three of the books and had examined the other eight, and had made a finding 'that there is reason to believe that said books are obscene.'

This motion was sustained and the case was reassigned to division No. 6 of the same court. Here motions to quash and dismiss and for a jury trial, identical to the previous ones were made and overruled. As a result of pretrial conference the parties entered into certain stipulations including the following:

'1. Agents or representatives of the Attorney General in the month of July, 1964, purchased from open counters or rack displays, where they were offered for sale to the general public, the eleven titles named in the Information, said titles having been filed in this proceeding as Exhibits 'A' through 'K', at Rector's Book Store, 133 North Broadway, Wichita, Kansas.

'2. Francis G. Vater and Joe Rector, Jr. are co-partners operating Rector's Book Store, at 133 North Broadway, Wichita, Kansas, and in the course of a year's business in that store handle and offer for sale to the general public large quantities of written and printed publications of all kinds dealing with every conceivable subject; that such written and printed publications are supplied by established publishing houses and comprise Trial was had December 10, 1964. The plaintiff introduced into evidence copies of the eleven books and rested. The defendants then moved to dismiss upon the grounds the plaintiff had not sustained its burden of proof. The trial judge took this motion under advisement. The defendant owners then offered the testimony of an associate professor of English at Wichita University, and they also offered into evidence copies of nine different books by well- known authors, concerning which the professor testified, as well as the challenged books. The judge of division No. 6 who heard the above passed away prior to rendition of any decision. By agreement of the parties the case was eventually reassigned to division No. 7 for decision on the record already made. Thereafter the judge of that division entered his memorandum opinion upholding the procedure used but finding that the books were not obscene and denying the requested seizure warrant.

daily and weekly newspapers, magazines, books and prints containing material concerning religion, philosophy, science, literature, art, and all subjects relating to ideas and the graphic arts of interest to readers and students of printed words and ideas and the graphic arts; that everyone patronizing Rector's Book Store has a free choice in the purchase of the printed matter for sale at the store; that the proprietors of Rector's Book Store have not read the eleven titles involved in this action and do not read nor presume to read as a matter of course the printed material which is offered for sale in such store.'

The plaintiff has appealed from such finding and order, and the defendants have cross-appealed from the earlier orders denying their motion to quash and to dismiss and for jury trial.

Plaintiff, referred to hereafter as appellant, asserts the trial court erred as a matter of law in concluding that the questioned books are not obscene within the meaning of K.S.A. 21-1102 and in refusing to issue a seizure warrant pursuant to K.S.A. 1102c. Defendants, referred to hereafter as appellees, urge that the books are not obscene and are within the protection of the first and fourteenth amendments to the constitution of the United States and section 11 of the bill of rights of the Kansas constitution.

The first amendment to the federal constitution provides in part:

'Congress shall make no law * * * abridging the freedom of speech, or of the press * * *.'

The fourteenth amendment provides in pertinent part:

'* * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

And section 11 of our own bill of rights provides:

'The liberty of the press shall be inviolate: and all persons may freely speak, write or publish their sentiments on all subjects, being responsible for the abuse of such right * * *.' K.S.A. 21-1102 provides in pertinent part:

'(a) Any person who shall * * * sell * * * or distribute any book * * * publication or other thing, containing obscene, immoral, lewd or lascivious language, or obscene * * * descriptions, manifestly tending to the corruption of the morals of persons * * * shall be guilty of a misdemeanor * * *.

'(b) The test to be applied in cases under subsection (a) of this section 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 'Any person who * * * distributes for resale or for reading * * * any book, magazine or pamphlet, so composed as to constitute a compilation of * * * words, stories * * * featuring and primarily devoted for the purpose of commercial exploitation, to the description or portrayal or suggestion of illicit sex, or sexual relations, of perversion, lust or sexual passion, or to any combination * * * thereof, shall be guilty of a violation of section 1 (21-1102) of this act * * *.'

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.' K.S.A. 21-1102a provides in part:

And K.S.A. 21-1102c establishes a procedure for the issuance of search warrants, and for seizure and destruction of material found to be in violation of the foregoing statutes.

A leading case on obscenity has been Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, decided in 1957. There it was said that obscenity is not within the area of constitutionally protected freedom of speech or press either under the first amendment as to the federal government or under the due process clause of the fourteenth amendment as to the states. The court stated:

'The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' (p. 484, 77 S.Ct. p. 1308.) The court further said:

'* * * sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest.' (p. 487, 77 S.Ct. p. 1310.)

The court quoted approvingly the following definition of obscenity:

"A thing is obscene if, considered as a whole, its predominant appeal...