State v. American Theater Corp.

• Decision Date: 05 June 1975
• Docket Number: No. 39706,39706
• Citation: 194 Neb. 84,230 N.W.2d 209
• Parties: STATE of Nebraska, Appellee, v. AMERICAN THEATER CORPORATION, a corporation, d/b/a 'Pussy Cat Theater', Appellant.
• Court: Nebraska Supreme Court

Page 209

230 N.W.2d 209

194 Neb. 84

STATE of Nebraska, Appellee, v. AMERICAN THEATER CORPORATION, a corporation, d/b/a 'Pussy Cat Theater', Appellant.

No. 39706.

Supreme Court of Nebraska.

June 5, 1975.

Syllabus by the Court

1. The criteria for determining obscenity set forth in the Nebraska obscenity statutes and as construed by this court are not violative of the First and Fifth Amendments to the United States Constitution, nor does such judicial construction as it applies to pre-Miller v. California offenses constitute such statutes ex post facto laws.

2. Where a movie film is publicly shown, knowledge of its contents by the exhibitor is sufficiently demonstrated so as to establish scienter necessary in criminal cases.

3. In reviewing a jury verdict involving rights of free expression under the First Amendment to the United States Constitution, the reviewing court shall make an independent judgment as a matter of law as to the obscenity vel non of the particular work.

Stern, Harris, Feldman, Becker & Thompson, Omaha, Robert Eugene Smith, Gilbert H. Deitch, Atlanta, Ga., for appellant.

Paul L. Douglas, Atty. Gen., Ralph H. Gillan, Asst. Atty. Gen., Lincoln, for appellee.

Heard before BOSLAUGH, NEWTON, CLINTON and BRODKEY, JJ., HASTINGS and RIST, District Judges, and KUNS, Retired District Judge.

HASTINGS, District Judge.

Defendant, a corporation operating the Pussy Cat Theater in Omaha, was charged in municipal court under section 28--921, R.S.Supp., 1972, with distribution of obscene material, tried to a jury, found guilty, and sentenced. On appeal on the record, the District Court also found defendant guilty, imposed a fine of $500, and overruled the motion for a new trial. We affirm.

The evidence is undisputed that a so-called 'private showing' of the movie Deep Throat had been arranged at defendant's theater by telephone solicitation among a group of 75 to 90 people. These people paid $7 per couple to the defendant's manager who then placed their names on a list of those who would be authorized to enter the particular portion of the theater where the film would be shown. When it became apparent that the police intended to take action against the film and the defendant, an attempt was made to alter the showing in progress by switching films and forcibly to prevent the police from seizing the film.

Although defendant lists numerous assignments of error, only three are argued, the first being in three parts, and to which our consideration must be limited.

First, defendant claims that sections 28--920 et seq., R.R.S.1943, and specifically section 28--921, R.S.Supp., 1972, are repugnant to its rights under the First, Fifth, and Fourteenth Amendments to the Constitution of the United States; the trial court erred in not properly instructing the jury on the standards of obscenity as defined in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; and then, apparently, had the trial court done so, the defendant was subjected to an ex post facto law because Miller, Supra, changed the law between the date of the offense and the date of the trial.

Considering the second part of defendant's first assignment, it contends in its brief that the trial court denied its proposed instruction No. 1 which set forth the proper standards of obscenity taken from Miller v. California, Supra, 'and instead gave a definition that excluded the phrase 'whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by state law. '' Failure to give defendant's requested instruction No. 1 does not appear in defendant's brief under the topic, 'Assignments of Error.' Under the rule announced in Ripp v. Riesland, 180 Neb. 205, 141 N.W.2d 840, an error discussed but not assigned in appellant's brief, which is not a plain error, will not be considered on appeal. What is additionally vexatious is that no requested instruction No. 1 appears anywhere in the transcript. In any event, an examination of the court's instructions reveals that it did properly instruct the jury on this issue. By instruction No. 5 the jury was told that it must find beyond a reasonable doubt that defendant willfully and knowingly circulated an obscene, lewd, indecent, and lascivious movie; and that in order to reach that decision, it '. . . must find beyond a reasonable doubt that all of the following numbered propositions coalesce, that is, unite unto a whole: . . . (2) That the movie 'Deep Troat' depicts or describes in a patently offensive way sexual conduct that is specifically defined by the Statutes of Nebraska . . ..' Instruction No. 6 defined prurient interest as a '. . . shameful or morbid interest in sex, nudity or excretion which goes beyond the customary limits of candor.' Instruction No. 7 set forth the pertinent portions of section 28--921, R.S.Supp., 1972, forbidding the circulation of '. . . any obscene, lewd, indecent, or lascivious . . .' material and describing '. . . the standard for judging obscenity to be applied as a guide by finders of fact in considering evidence is whether to the average person the dominant theme of said material or conduct which is at issue in such civil action or criminal proceedings, taken as a whole, . . . is to excite lustful thoughts, or a shameful or morbid interest in nudity, sex or excretion which goes substantially beyond the customary limits of candor.'

Apparently defendant's claim is that the statutes of Nebraska proscribing 'obscene, lewd, indecent, or lascivious' movie films do not constitute specifically defined sexual conduct. This court in State v. Little Art Corp., 191 Neb. 448, 215 N.W.2d 853, quoted the following language from United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973): "If and when such a 'serious doubt' is raised as to the vagueness of the words 'obscene,' 'lewd,' 'lascivious,' 'filthy,' 'indecent,' or 'immoral' as used to describe regulated material in 19 U.S.C. § 1305(a) and 18 U.S.C. § 1462, see United States v. Orito (post), 413 U.S. (139) at 140 (n.1), 93 S.Ct. (2674) at p. 2676 (37 L.Ed.2d 513, 1973) we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific 'hard core' sexual conduct given as examples in Miller v. California, ante, 413 U.S. at p. 25, 93 S.Ct. (2607), at pp. 2615--2616 (37 L.Ed.2d 419) (1973)." We went on to say: 'We find that the Nebraska statutes fully comply with the requirements of Miller v. California, supra, and other related cases.'

There not only were no 'plain errors' in the trial court's instructions setting out the Miller standards, but they were correctly given. We further find that the criteria for determining obscenity set forth in sections 28--920 et seq., R.R.S.1943, and as construed by this court in State v. Little Art Corp., Supra, are not vague and indefinite so as to be repugnant to defendant's rights under the First, Fifth, and Fourteenth Amendments, nor is defendant being subjected to an ex post facto law. 'We further find that in once more affirming the conviction of defendant, no retroactive application of the law is involved. At the time of the violation by defendant our statutes were in full force and effect. Their meaning and purpose were clear. We have not given them a new or different construction but have simply affirmed and called attention to their clear meaning and intent.' State v. Little Art Corp., Supra, 191 Neb. at p. 452, 215 N.W.2d at p. 856. In any event, defendant insists that it was tried on Roth-memoirs standards rather then Miller standards as contained in its requested instruction No. 1. We have already pointed out that the trial court's instruction No. 5 was nearly identical with the defendant's proffered instruction as closely as we can reconstruct it from its brief. Assuming only for the sake of discussion that the trial...