State v. Chobot
Citation | 106 N.W.2d 286,12 Wis.2d 110 |
Parties | STATE of Wisconsin, Respondent, v. Joseph CHOBOT, Appellant. |
Decision Date | 29 November 1960 |
Court | United States State Supreme Court of Wisconsin |
Raskin, Zubrensky & Padden, Milwaukee, Leonard S. Zubrensky, Milwaukee, of counsel, for appellant.
John W. Reynolds, Atty. Gen., William A. Platz, Asst. Atty. Gen., William J. McCauley, Dist. Atty., Richard B. Surges, Asst. Dist. Atty., Milwaukee, for respondent.
Sec. 944.21(1)(a), Stats. provides:
'Whoever intentionally does any of the following may be fined not more than $5,000 or imprisoned not more than 5 years or both:
'(a) Imports, prints, advertises, sells, has in his possession for sale, or publishes, exhibits, or transfers commercially any lewd, obscene or indecent written matter, picture, sound recording, or film; * * *'
The constitutional provisions here involved are:
Wisconsin Constitution, Article I, Sec. 3:
'Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press.'
Amendments to the United States Constitution:
Article I. 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.'
The test of obscenity which the trial court applied to the exhibits in this case is that enunciated in Roth v. United States, 1957, 354 U.S. 476, 489, 77 S.Ct. 1304, 1311, 1 L.Ed.2d 1498 ( ), as follows:
(Emphasis supplied.)
In the Roth case the question was whether the federal obscenity statute violates the free speech amendment, and in that case conviction was by a jury. In the Alberts case the question was whether the obscenity provisions of the California Penal Code invaded the freedoms of speech and press as incorporated in the protection of the Fourteenth Amendment, and in that case conviction was by the court.
The United States supreme court held that 'obscenity is not within the area of constitutionally protected speech or press,' quoting from Chaplinsky v. New Hampshire, 1942, 315 U.S. 568, 571-572, 62 S.Ct. 766, 86 L.Ed. 1031, as follows:
The court rejected the earlier standard of obscenity which permitted material to be judged merely by the effect of an isolated expert upon particularly susceptible persons and adopted the test referred to above, 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' It affirmed the convictions in both the Roth and Alberts cases because in both the proper definition of obscenity was used and both followed the proper standard. It is noted that in the Alberts case the trial judge indicated that as the trier of facts he was judging each item as a whole as it would affect a normal person; and the United States supreme court approved the instructions given to the jury in the Roth case, which included the following (354 U.S. 490, 77 S.Ct. 1312):
The United States Supreme Court recognized that terms used in obscenity statutes are not precise (354 U.S. at pages 491-492, 77 S.Ct. at page 1312):
'This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. '* * * The Constitution does not require impossible standards;' all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices * * *.' United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark (Citing cases)
'In summary, then, we hold that these statutes, applied according to the proper standard for judging obscenity, do not offend constitutional safeguards against convictions based upon protected material, or fail to give men in acting adequate notice of what is prohibited.'
Under these authorities, the words 'lewd, obscene or indecent' used in sec. 944.21(1)(a), Stats. are not unconstitutionally indefinite. We may agree, as appellant argues, that standards by which obscenity have been judged have changed through the years and such standards may vary as between individuals. It was in recognition of that fact that it was held in the Roth case that the standard to be applied is that of the average person, applying contemporary community standards. If the dominant theme of the material taken as a whole, and considered by such standards, appeals to prurient interest, it is obscene.
In a note to the Roth case at 354 U.S. 487, 77 S.Ct. 1310, 1 L.Ed.2d 1508, the definition of the A.L.I., Model Penal Code, sec. 207.10(2) (Tent Draft No. 6, 1957) is stated as follows:
'* * * 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. * * *'
Appellant argues, citing various psychiatric texts, that there is no relationship between the reading of erotic material and dangerous social behavior. This aspect of the subject is beside the point in deciding the case. As observed by Justice Harlan in his concurring opinion in the Roth case--calling attention to the fact that the causal connection between such reading material and crime or delinquency is a matter on which there are opposing schools of scientific thought--it is not for the court to decide that question. That function is legislative, and the very fact that there is division of opinion on the subject is good reason to respect the choice made by the...
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...merit. Monfred v. State, 226 Md. 312, 317, 173 A.2d 173, cert. denied 368 U.S. 953, 82 S.Ct. 395, 7 L.Ed.2d 386; State v. Chobot, 12 Wis.2d 110, 116, 106 N.W.2d 286, dismissed for lack of a substantial federal question, 368 U.S. 15, 82 S.Ct. 136, 7 L.Ed.2d 85. The defendant further claims t......
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State ex rel. Chobot v. Circuit Court for Milwaukee County
...Stats., has adopted the Roth-Memoirs formulation of constitutional obscenity with some modifications. In State v. Chobot (1960), 12 Wis.2d 110, 106 N.W.2d 286, this court adopted the Roth test of obscenity and sustained the trial court's finding that certain magazines were, in fact, obscene......
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