State v. Becker, 44449

• Decision Date: 11 October 1954
• Docket Number: No. 1,No. 44449,44449,1
• Citation: 272 S.W.2d 283,364 Mo. 1079
• Parties: STATE of Missouri, Respondent, v. Harold BECKER, Appellant
• Court: Missouri Supreme Court

Page 283

272 S.W.2d 283

364 Mo. 1079

STATE of Missouri, Respondent, v. Harold BECKER, Appellant.

No. 44449.

Supreme Court of Missouri, Division No. 1.

Oct. 11, 1954.

Motion for Rehearing or to Transfer to Court en Banc Denied

Nov. 8, 1954.

Morris A. Shenker, Sidney M. Glazer, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Robert R. Welborn, Asst. Atty. Gen., for respondent.

CONKLING, Judge.

Harold Becker, defendant, appealed from a judgment of the St. Louis Court of Criminal Correction finding him guilty of a violation of Section 563.280 RSMo 1949, V.A.M.S. That section, among other things, makes it an offense to possess with intent to sell or circulate any obscene, lewd, licentious, indecent or lascivious pamphlet, paper, picture, photograph or other publication of an indecent, immoral or scandalous character. The Information filed charged defendant with having in his possession, with intent to sell and circulate, 'certain obscene, indecent, scandalous, and immoral publications, to wit: 648 Publications entitled 'Solaire Universalle De Nudisme, Vol. 1, No. 5' and 195 (publications) entitled 'Sunshine and Health' the same containing pictures and photographs of men, women and children in the nude with private parts completely depicted including the pubic hair.' The cause was tried to the court without a jury. Upon a finding and judgment of guilt, the trial court assessed a fine of $100. Sentence was imposed and defendant appealed to the St. Louis Court of Appeals. That court transferred the cause here upon constitutional grounds, Mo.Ap., 268 S.W.2d 51. Constitution of Missouri, Article V, Section 3. V.A.M.S.

The Attorney-General has filed a motion to transfer the cause back to the above Court of Appeals. We first consider that motion. While the Attorney-General instantly insists that the cause should be transferred to the St. Louis Court of Appeals because no substantial constitutional question has been presented which would confer jurisdiction upon this Court, we are not persuaded to that view. Defendant raised below at the first opportunity and has contended throughout the case that Section 563.280, supra, is violative of the due process provisions of the State and Federal Constitutions because 'it is too vague and indefinite to provide an ascertainable standard of guilt.' The attack made on the statute presents a constitutional question which vested this Court with jurisdiction of this cause. The motion to transfer the cause to the St. Louis Court of Appeals is accordingly overruled.

It is first contended by defendant that the trial court erred in refusing to enter a judgment for his acquittal. Defendant asserts that the evidence of record is legally insufficient to sustain the judgment of guilt and conviction. A copy of each of the publications or magazines mentioned in the Information were before the trial court as exhibits and have been filed in this Court. It appears from the record that defendant conceded that he had the 648 copies of 'Solaire Universalle De Nudisme' and the 195 copies of 'Sunshine and Health' in his possession with the intent to sell and circulate them. The above publications do contain many 'pictures and photographs of men, women and children in the nude with private parts completely depicted.'

Neither the pictures in nor the texts of the above publications can be here reproduced. It is sufficient to here state that some of the photographs are nude pictures of young but mature persons of each sex alone, and some are of both women and men together in the nude. Some of the pictures are of many (30 to 50) nude men and women and children in a single picture. Other photographs of men and women are in various nude and suggestive postures. The printed matter in the above publications is in the nature of propaganda to nudism; contains reports of nudist gatherings where Saturday night dances of nude men and women are held, and where 'mature boys and girls swim, stroll, play volley ball and badminton as if they were fully clothed'; contains letters from and testimonials of nudists one of which contains a suggestive and sensual verse; and contains reports of raids on nudist colonies, and pleas for contributions to defense funds, etc. The above is fairly and sufficiently indicative of the contents of the publications in question.

Defendant's brief asserts that the first issue to be decided in this case is whether the instant publications are 'obscene, lewd, licentious, indecent or lascivious or of an indecent, immoral or scandalous character.' A determination of that question will rule defendant's first contention and assignment of error.

In the case of State v. Mac Sales Co., Mo.App., 263 S.W.2d 860, loc. cit. 863, the St. Louis Court of Appeals stated: 'With reference to (4), supra, one test of obscenity is whether the article in question tends to deprave and corrupt the morals by inciting lascivious thoughts or arousing the lustful desire of those whose minds are open to such influences and into whose hands such a publication may fall. 33 Am.Jur., Lewdness, Indecency and Obscenity, Sec. 4, p. 17; 67 C.J.S., Obscenity, Sec. 7c, p. 30 et seq. We have defined obscenity as 'such indecency as is calculated to promote the violation of the law and the general corruption of morals * * * and include what is foul and indecent, as well as immodest, or calculated to excite impure desires.' State v. Pfenninger, 76 Mo.App. 313.'

The test of obscenity is set forth in 67 C.J.S., Obscenity, Sec. 7, p. 30, as follows: 'The test which determines the obscenity or indecency of a publication is the tendency of the matter to deprave and corrupt the morals by inciting the lascivious thoughts or arousing the lustful desire of those whose minds are open to such influences, and into whose hands such a publication may fall. * * *'

A test frequently relied upon by courts in this country is that stated by Cockburn, Ch.J., in the case of Reg. v. Hicklin, [1868] L.R. 3 Q.B. 360, 371, 8 Eng.Rul.Cas. 60: 'I think the test of obscenity is this: whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.'

In United States v. Harmon, D.C., 45 F. 414, loc. cit. 417, the court, in discussing the statute prohibiting the use of the mails for obscene matter, stated: 'Laws of this character are made for society in the aggregate, and not in particular. So, while there may be individuals and societies of men and women of peculiar notions or idiosyncrasies, whose moral sense would neither be depraved nor offended by the publication now under consideration, yet the exceptional sensibility, or want of sensibility, of such cannot be allowed as a standard by which its obscenity or indecency is to be tested. Rather is the test, What is the judgment of the aggregate sense of the community reached by it? What is its probable, reasonable effect on the sense of decency, purity, and chastity of society, extending to the family, made up of men and women, young boys and girls, * * *.'

See also, King v. Commonwealth, 313 Ky. 741, 233 S.W.2d 522; Commonwealth v. Donaducy, 167 Pa.Super. 611, 76 A.2d 440, 442; Commonwealth v. New, 142 Pa.Super. 358, 16 A.2d 437; State v. Weitershausen, 11 N.J.Super. 487, 78 A.2d 595; People v. Eagle, 203 Misc. 598, 117 N.Y.S.2d 380; People v. Ring, 267 Mich. 657, 255 N.W. 373, 375, 93 A.L.R. 993, and cases collected in 29 Words and Phrases, Obscene, page 68 et seq.

It is our duty and responsibility to determine whether these publications are obscene, lewd, lascivious, licentious, and of a scandalous, indecent or immoral character. It seems clear to us that they are. Even judges may know what falls within the classification of the decent, the chaste and the pure in either social life or in publications, and what must be deemed obscene and lewd and immoral and and scandalous and lascivious. These questions have been considered and tested objectively as to the effect of these publications in their entirety upon persons of average human instincts. The people of this State speaking with their constitutional voice, the General Assembly, enacted this statutory proscription of obscenity for the protection of all the people of the State. Under this statute and the prior rulings of the courts we may not disregard an unambiguous enactment which has as its obvious purpose the protection of the morals of the susceptible into whose hands these publications may come. While we recognize that morality may not be attained by legislation, a people nonetheless need and deserve a moral standard and the protection and enforcement of such a statute. After applying the required tests all the members of this Court have concluded that the contents of these publications tend to incite lascivious thoughts, arouse lustful desire, encourage breaches of the law, and promote and encourage commission of crime, law violation and moral decay. Defendant's first contention is therefore denied.

In support of his first contention defendant relies upon and cites to us such cases as Parmelee v. United States, 72 AppD.C. 203, 113 F.2d 729; United States v. One Book Entitled Ulysses, 2 Cir., 72 F.2d 705; State v. Lerner, Ohio Com.Pl., 81 N.E.2d 282, and People v. Burke, 243 App.Div. 83, 276 N.Y.S. 402. We have examined all the cases cited by defendant but must decline to follow them. The apparent rationale of those and other cases which reach a conclusion contrary to that we have above expressed seems to us to be confounded of confusion and artificialities, and seems not to have considered certain basic concepts and teachings which we deem important. Some opinion writers have variously defined obscenity as a 'Function of many variables' and also as, 'The present critical point in the compromise between candor and shame at which the community may have arrived here and now.' Another writer has...