State v. Cercone

• Citation: 196 A.2d 439,2 Conn.Cir.Ct. 144
• Decision Date: 09 July 1963
• Docket Number: No. CR,CR
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: STATE of Connecticut v. Edward CERCONE. 17-1645.

Page 439

196 A.2d 439

2 Conn.Cir.Ct. 144

STATE of Connecticut v. Edward CERCONE.

No. CR 17-1645.

Circuit Court of Connecticut, Appellate Division.

Argued May 20, 1963.

Decided July 9, 1963.

Howard R. Steeg, Bristol, for appellant (defendant).

Robert P. Sneideman, Pros. Atty., for appellee (state).

JACOBS, Judge.

The defendant, a news dealer, was convicted in a trial to the court upon a one-count information charging him with a violation of our antiobscenity statute (General Statutes § 53-243), ¹ which makes it unlawful for '[a]ny person * * * [to have] in his possession with intent to sell * * * any book * * * containing obscene, indecent or impure language.' Three principal issues are raised on this appeal: (1) whether the condemned publication, 'Gang Girls,' is obscene within the meaning of the statute; (2) whether the state's proof of scienter by the defendant was sufficiently established; and (3) whether the conduct of the trial court was prejudicial to the rights of the defendant.

Our first inquiry must be: Is 'Gang Girls' obscene? The word 'obscene' is a relative and subjective term, describing the reaction of the human mind to a certain type of experience. It is an emotive word, conveying a feeling of disgust. A book or pamphlet is usually said to be obscene, not for the opinions which it expresses, but for the way in which they are expressed. The difficulty in giving it a definition is well illustrated by an international conference held in Geneva in the interests of the 'Suppression of the Circulation in the Traffic in Obscene Publications,' but when the delegates were assembled they discovered they could not agree on the definition of 'obscenity,' and then, 'having triumphantly asserted that they did not know what they were talking about, the members of the conference settled down to their discussion.' Chandos, To Deprave and Corrupt, p. 15 (Introd.) (1962).

Modern confusion in the law of obscenity began in 1868 with the celebrated Hicklin case (Regina v. Hicklin, L.R. 3 Q.B. 360), in which Chief Justice Cockburn reversed the decision of the recorder and restored the destruction order of a pamphlet called 'The Confessional Unmasked.' In the course of his judgment, he laid down a test for obscenity (p. 371), namely, 'whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.' The Hicklin test soon became embedded in American law (see Roth v. United States, 354 U.S. 476, 489, n. 25, 77 S.Ct. 1304, 1 L.Ed.2d 1498) and was even applied less than a decade ago in State v. Becker, 364 Mo. 1079, 272 S.W.2d 283. Slowly, however, opposition to it developed. '[T]he rule as laid down [in Regina v. Hicklin],' said Judge Learned Hand in United States v. Kennerley, 2 Cir., 209 F. 119, 120, 'however consonant it may be with mid-Victorian morals, does not seem to me to answer to the understanding and morality of the present time, as conveyed by the words, 'obscene, lewd, or lascivious." The major attack came in 1933 in United States v. One Book Called 'Ulysses,' D.C., 5 F.Supp. 182, aff'd, 2 Cir., 72 F.2d 705, in which Judge Woolsey lifted the ban on 'Ulysses' and in so doing laid down a new test for obscenity in books. The 'partly obscene test for obscenity' was explicitly rejected. The court (72 F.2d 708) emphasized that 'the proper test of whether a given book is obscene is its dominant effect' and the question in each case is whether a publication has a libidinous effect. In 1957, the United States Supreme Court finally put an end to these tests for obscenity; both, the court declared, are unconstitutional. Roth v. United States, supra, 354 U.S. 489, 77 S.Ct. 1311, 1 L.Ed.2d 1498. Mr. Justice Brennan, writing for the majority, held (354 U.S. p. 485, 77 S.Ct. 1309, 1 L.Ed.2d 1498) 'that obscenity is not within the area of constitutionally protected speech or press' because it is (354 U.S. p. 484, 77 S.Ct. p. 1309, 1 L.Ed.2d 1498) 'utterly without redeeming social importance.' He further declared (354 U.S. p. 487, 77 S.Ct. p. 1310, 1 L.Ed.2d 1498): 'Obscene material is material which deals with sex in a manner appealing to prurient interest,' which he explained in a footnote (354 U.S. p. 487, n. 20, 77 S.Ct. p. 1310, 1 L.Ed.2d 1498) was 'material having a tendency to excite lustful thoughts.' In determining what is obscene in any particular case, '[t]he law will not hold the crowd to the morality of saints and seers'; Cardozo, Paradoxes of Legal Science, p. 37; but rather, a constitutionally satisfactory 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, 1 L.Ed.2d 1498. The test for obscenity the court borrowed from the Model Penal Code and explained (354 U.S. p. 487, n. 20, 77 S.Ct. p. 1311, 1 L.Ed.2d 1498): 'We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I., Model Penal Code, § 207.10(2) (Tent. Draft No. 6, 1957), viz.: '* * * A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters. * * *' See comment, id., at 10, and the discussion at page 29 et seq.' ²

Connecticut has adopted the Roth test for obscenity. 'In defining, in State v. Sul * * * 146 Conn. 78, 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 the 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." State v. Andrews, 150 Conn. 93, 96, 186 A.2d 546, 549. The court went on to say (150 Conn. p. 100, 186 A.2d p. 551): 'In our examination of the case law and legal literature on obscenity, we have found no more specific definition of what can be adjudged obscene than that contained in Roth v. United States, supra, 354 U.S. 487, 77 S.Ct. 1310 .'

'Who, then,' asks Chief Justice Baldwin in the Andrews case (150 Conn. p. 100, 186 A.2d p. 551), 'shall apply * * * [the Roth test] to the facts of a particular case?'

The line between expressions unconditionally guaranteed and protected and those which may be legitimately suppressed, regulated or punished is finely drawn. Application of this test will not automatically determine the propriety of all books; courts cannot apply it in all cases with the simplicity in which a chemist employs a reagent. Good and bad are not divided by a hairline. Rather, there stretches between them a penumbral zone through which we must make our way with difficulty. The separation of legitimate from illegitimate expression calls for 'sensitive tools.' See Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 2 L.Ed.2d 1460. 'Passing then to the merits we must of course be cognizant of the risk run by judges in enforcing obscenity statutes such as this and thus perchance condemning what become classics of our intellectual heritage. Some of the present Justices of the Supreme Court [of the United States] revolt against all this supervision as violative of constitutional precepts.' Grove Press, Inc. v. Christenberry, 2 Cir., 276 F.2d 433, 436 (Clark, J., sustaining the mailability of 'Lady Chatterley's Lover'). But since our antiobscenity statute has survived a constitutional attack made upon it in State v. Andrews, supra, 150 Conn. 96, 186 A.2d, 'it remains the duty of those of us who sit in inferior courts to enforce it as best we may.' ³ Grove Press, Inc. v. Christenberry, supra. 'In short, the appellate court cannot escape this responsibility by saying that the trier of facts, judge or jury, has labeled the questioned matter obscene and that there is some evidence to support such a finding.' State v. Andrews, supra, 150 Conn. 100, 186 A.2d 551. Chief Justice Baldwin quoted with approval (id., 150 Conn. 101, 186 A.2d 551) a statement from Mr. Justice Harlan, dissenting in Roth (354 U.S. p. 497, 77 S.Ct. p. 1316, 1 L.Ed.2d 1498): '[I]f 'obscenity' is to be suppressed, the question whether a particular work is of that character involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate kind.' '[We] would not want or (if * * * [we] could avoid it) permit this court to become a licensor, a censor, a book-burner.' Burke v. Kingsley Books, Inc., 208 Misc. 150, 161, 142 N.Y.S.2d 735, 745 (N.Y.) (Levy, J.). But we cannot avoid and should not avoid facing up to the tough individual problems which are necessarily involved in obscenity cases. It is not our function to express agreement or disagreement with present community standards; our task is to record the times as we find them--not to emulate King Canute in an effort to turn the tide back. To change standards of morals is the task of home, school and church. 'Law accepts as the pattern of its justice the morality of the community it assumes to regulate.' Cardozo, Paradoxes of Legal Science, p. 37 (1928).

With these principles in mind, we examine for ourselves whether the book under attack is suppressible within constitutional standards. 'Gang Girls' is a paperback book...