State v. Andrews

• Decision Date: 06 November 1962
• Citation: 150 Conn. 92,186 A.2d 546
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Joseph S. ANDREWS. Supreme Court of Errors of Connecticut

Page 546

186 A.2d 546

150 Conn. 92

STATE of Connecticut v. Joseph S. ANDREWS.

Supreme Court of Errors of Connecticut.

Nov. 6, 1962.

William A. Jacobs and James M. S. Ullman, Meriden, for appellant (defendant).

George R. Tiernan, New Haven, for appellee (state).

Before BALDWIN, C. J., and KING, MURPHY, SHEA and ALCORN, JJ.

BALDWIN, Chief Justice.

This is an appeal from a conviction on each of two counts for the violation of Connecticut's antiobscenity statute. General Statutes, § 53-243. ¹ The defendant raises three basic claims: (1) § 53-243 is unconstitutional for lack of any explicit scienter requirement; (2) there was no evidence of scienter on his part; and (3) the magazines for the possession of which he has been convicted were not obscene.

In June, 1960, the defendant, Andrews, in partnership with William C. Smith, conducted a news store in the city of Meriden, where they sold magazines, candies and cigarettes. Customers were able without restriction to select magazines from an open-shelf magazine rack about fifteen feet in length. A variety of magazines were exposed for sale, including so-called sex magazines, which were separately displayed. On June 17, 1960, a state police officer in plain clothes purchased in the store two magazines which he had selected from a large display of magazines of a similar character. Smith waited on this officer, took his money, put the magazines in a paper bag and delivered them to him. The magazines purchased on this occasion were 'Modern Man--1960 Yearbook of Queens' and 'Modern Man,' July, 1960, issue. On June 27, 1960, another police officer confiscated (see General Statutes § 54-29) from this store copies of thirteen different sex magazines, including copies of the two purchased ten days previously by the plainclothes officer. Both partners admitted to this officer that the magazines confiscated did not come to them through normal channels but by railway express and personal delivery. Each of the partners subsequently was presented on a four-count information, the first two counts of which charged each of them with having possessed, on June 17 and June 27, 1960, obscene literature and pictures, in violation of § 53-243; in the third and fourth counts each was charged with having, on these same days, displayed and offered for sale unlawful literature to persons under eighteen years of age, in violation of § 53-244. On the motion of each of them, the third and fourth counts were dismissed. Findings of guilty were entered on the counts based on § 53-243. Both men appealed. Inasmuch as the issues in Smith's appeal are the same as those in Andrews' appeal, the parties stipulated that only the record in Andrews' appeal would be printed and that the judgment in the Andrews case would be conclusive on the parties in the Smith case.

The defendant, Andrews, challenged the constitutionality of § 53-243 in a demurrer which was overruled by the trial court. The defendant contends that the absence in that section of any explicit requirement that an accused have knowledge of the contents of the proscribed material imposes an absolute and strict criminal liability in violation of his rights of freedom of speech and of the press as guaranteed by the first and fourteenth amendments to the federal constitution and by §§ 5 and 6 of article first of the Connecticut constitution. The defendant relies on the 1959 decision of the United States Supreme Court in Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. In that case, an antiobscenity law which had been judicially construed not to include any such scienter requirement was held violative of these federal constitutional guarantees. Our decision of 1958 in State v. Sul, 146 Conn. 78, 147 A.2d 686, precludes that problem from arising under § 53-243. In that case, we expressly construed § 53-243 (then Rev.1949, § 8567) as requiring, as an essential element of proof in any prosecution for violation of it, proof of scienter by the accused. Id., 146 Conn., 87, 147 A.2d 691. Subsequent to the decision in Smith v. California, supra, the highest courts of several other states have construed similar antiobscenity statutes as including such an implied scienter requirement. Cohen v. State, 125 So.2d 560, 563 (Fla.1960); Demetropolos v. Commonwealth, 342 Mass. 658, 661, 175 N.E.2d 259 (1961); State v. Oman, 261 Minn. 10, 110 N.W.2d 514 (1961); People v. Finkelstein, 9 N.Y.2d 342, 345, 214 N.Y.S.2d 363, 174 N.E.2d 470 (1961); State v. Jackson, 224 Or. 337, 345, 356 P.2d 495 (1960). Our construction of § 53-243 incorporates the scienter requirement into the statute 'as definitely as if it had been so amended by the legislature.' People v Finkelstein, supra; see Winters v. New York, 333 U.S. 507, 514, 68 S.Ct. 665, 92 L.Ed. 840. The defendant's challenge to the constitutionality of § 53-243 on this ground is without merit.

The defendant's claim that the magazines were not obscene raises an issue with decisive constitutional overtones. The question is whether the allegedly obscene magazines are obscene under § 53-243 and can be forbidden as obscene under the constitutional standards established by the Supreme Court of the United States. See Lockhart & McClure, 'Censorship of Obscenity: The Developing Constitutional Standards,' 45 Minn.L.Rev. 5, 116; United States v. Keller, 259 F.2d 54 (3d Cir.); Capitol Enterprises, Inc. v. Chicago, 260 F.2d 670 (7th Cir.); Commonwealth v. Moniz, 338 Mass. 442, 443, 155 N.E.2d 762. In State v. Sul, supra, we did not have before us the material which was alleged to be obscene under the statute. We pointed out (146 Conn., p. 84, 147 A.2d, p. 690) that obscenity is not protected by the unconditional language of the first amendment to the federal constitution and that the primary requirements of decency may be enforced by the states by outlawing traffic in obscenity. We cited Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Kingsley Books, Inc. v. Brown, 354 U.S. 436, 440, 77 S.Ct. 1325, 1 L.Ed.2d 1469; and Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031. The same principles apply under our state constitution. Conn.Const. art. I §§ 5, 6. In defining, in State v. Sul, supra, 146 Conn. 85, 147 A.2d 690, what constitutes obscenity under § 53-243, we took our text from the opinion of Mr. Justice Brennan, speaking for a majority of five of the United States Supreme Court, in Roth v. United States, supra. We held that § 53-243 'contemplates a publication, such as a book or pamphlet, which, considered as a whole, has a predominant appeal to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and goes substantially beyond the customary limits of candor in describing or representing such matters.' See Roth v. United States, supra, 354 U.S. 487, n. 20, 77 S.Ct. 1310; Model Penal Code § 251.4(1). The test is 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' Roth v. United States, supra, 354 U.S. 489, 77 S.Ct. 1311.

Following its decision in the Roth case, the Supreme Court of the United States, without opinion, found error in four cases in which the United States Court of Appeals had upheld obscenity censorship. They involved (1) the denial of a permit to exhibit the motion picture 'The Game of Love'; Times Film Corporation v. Chicago, 355 U.S. 35, 78 S.Ct. 115, 2 L.Ed.2d 72, reversing 244 F.2d 432 (7th Cir. 1957); (2) a forfeiture proceeding brought against a collection of nudist and art student publications containing many nude photographs; Mounce v. United States, 355 U.S. 180, 78 S.Ct. 267, 2 L.Ed.2d 187, vacating 247 F.2d 148 (9th Cir. 1957); (3) a postal order finding 'One--The Homosexual Magazine,' unmailable; One, Inc. v. Olesen, 355 U.S. 371, 78 S.Ct. 364, 2 L.Ed.2d 352, reversing 241 F.2d 772 (9th Cir. 1957); and (4) a postal order finding nudist material unmailable. Sunshine Book Co. v. Summerfield, 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352, reversing 101 U.S.App.D.C. 358, 249 F.2d 114 (1957). Whether the United States Supreme Court made an independent examination in each case of the allegedly obscene material in question does not appear. We assume that the court applied the standard laid down in Roth v. United States, supra. See Lockhart & McClure, op. cit., 45 Minn.L.Rev. 35 n. 171, for state court decisions on obscenity subsequent to Roth.

In Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639, the Supreme Court of the United States had before it a ruling of the postmaster general which had been sustained by the United States Court of Appeals in Manual Enterprises, Inc. v. Day, 110 U.S.App.D.C. 78, 289 F.2d 455 (1961). This ruling had barred from the mails a shipment of magazines allegedly obscene and, therefore, unmailable under the Comstock Act. 62 Stat. 768, 18 U.S.C. § 1461. The judgment of the court, reversing the Court of Appeals, was announced by Mr. Justice Harlan in an opinion in which only Mr. Justice Stewart joined. Of the other justices, two did not participate, one concurred in the result, another dissented, and three concurred in the reversal, but on procedural grounds. In his opinion (370 U.S., p. 486, 82 S.Ct., p. 1436), Mr. Justice Harlan states that, under the federal statute, proof of two distinct elements is required: '(1) patent offensiveness; and (2) 'prurient interest' appeal.' He then states that whether the magazines are offensive on their face is for the court to decide, and concludes that, judged by community standards of decency (viz., a national standard of decency), they were not obscene. Id., 370 U.S. 488, 491, 82 S.Ct. 1437, 1439.

These five cases offer little guidance in the case at bar. They provide no more specific a definition of obscenity--acceptable to a majority of the court--than that contained in the Roth case, and they...