State v. Hartstein

• Decision Date: 12 April 1971
• Docket Number: No. 54377,54377
• Citation: 469 S.W.2d 329
• Parties: STATE of Missouri, Respondent, v. Herbert Paul HARTSTEIN, Appellant.
• Court: Missouri Supreme Court

Page 329

469 S.W.2d 329

STATE of Missouri, Respondent, v. Herbert Paul HARTSTEIN, Appellant.

No. 54377.

Supreme Court of Missouri, En Banc.

April 12, 1971.

Rehearing Denied May 10, 1971.

John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.

Irl B. Baris, Leonard J. Frankel, Newmark & Baris, St. Louis, for appellant.

STOCKARD, Commissioner.

Defendant was charged with and found guilty of 'wilfully, unlawfully and knowingly have(ing) in (his) possession obscene, lewd, licentious, indecent and lascivious pictures with intent to publish and circulate said pictures by projecting the aforesaid pictures on a screen before divers persons' in violation of § 563.280 (all statutory references are to RSMo 1969, (V.A.M.S.). He has appealed from the ensuing judgment.

We have jurisdiction of this appeal, although the offense is a misdemeanor, because questions are presented which involve the construction of certain constitutional provisions.

After four police officers had observed the showing at the Olympic Drive-In Theater in St. Louis County of the moving picture entitled 'Night of Lust,' they arrested the defendant and seized the film. Defendant waived trial by jury and was tried by the court which found that the dominant theme of the motion picture, taken as a whole, appealed to the prurient interest in sex; that it is patently offensive and affronts contemporary community standards relative to the description or representation of sexual matters; that it is utterly without redeeming social value; that it is obscene; that defendant had possession of the motion picture film before it was shown to the public and was aware of its contents, and that he caused it to be shown to the public who were present at the theater.

Defendant first contends that § 563.280 does not make illegal the showing of an abscene motion picture because it does not specifically refer to motion pictures. We do not agree. The statute proscribes the possession with intent to circulate, and the distribution or circulation of, 'any obscene, lewd, licentious, indecent or lascivious * * * picture, photograph * * * print * * * or other publication of indecent, immoral or scandalous character * * *.' A motion picture 'consists of a series of photographs showing the objects in a scene in successive positions, slightly changed. When the series is presented in repid succession, the optical effect is of a picture in which the objects move.' Time Incorporated v. Bernard Geis Associates et al., D.C., 293 F.Supp. 130. See also, United States v. Peller, 2d Cir., 170 F.2d 1006.

Defendant next asserts that his trial and conviction subjection him to double jeopardy. Certain additional facts are necessary. Prior to the trial in which defendant was found guilty, he was tried before a jury. That trial ended in a mistrial when the jury failed to reach a verdict. At the close of the State's evidence in that trial the defendant moved for a judgment of acquittal, and during the discussion between counsel and the court, the trial judge apparently made a statement, as stated by counsel for defendant in the subsequent trial, to the effect that 'he would not say as a matter of law that the movie was obscene, and he could not say that the movie was not obscene, but he did overrule the motion for judgment of acquittal.' Proof was not made in the subsequent trial of the precise comment of the trial judge, but the proof, if it can be called that, consisted only of the above statement by defendant's counsel made in argument as to his recollection as to what was said. Counsel for the State indicated that his recollection was that 'I believe the judge indicated he felt he personally couldn't say one way or the other whether it was obscene.' Defendant now argues that in the previous trial the court was required to make an independent determination that the motion picture was obscene, and when the court indicated that it could not so find, the defendant at that point should have been acquitted, and any further proceedings, including the subsequent trial at which he was found guilty, constituted double jeopardy.

Aside from the failure of proof as to the ruling of the trial court, if the comment was a ruling, the contention is without merit. In State v. Vollmar, Mo., 389 S.W.2d 20, this court stated that 'we accept the now prevailing view that in obscenity cases the issue for determination is subject to constitutional limitations and the courts are faced with an obligation to make an independent determination of the constitutional issue which cannot be avoided by considering 'obscenity' as a fact issue only,' and that this court would 'make * * * (its) determination of the mixed question of law and fact as to whether the publications in question are obscene.' In the first trial, if the court should have but failed to determine the issue of whether the motion picture was obscene prior to submission to the jury, it was at most a trial error. If the jury had returned a verdict of guilty (instead of failing to reach a verdict with the resulting mistrial) and an appeal had been taken, the reviewing court would have, upon the issue being raised, made its own determination of the question of obscenity. Therefore, the trial error in the first trial, if it was error, and the resulting mistrial by reason of the failure of the jury to reach a verdict, does not result in the defendant being twice placed in jeopardy for the same offense in the constitutional sense.

Defendant next contends that it was error to admit into evidence the film of the motion picture 'Night of Lust,' and for the trial court to view it, because it was illegally seized by the arresting police officers without a warrant. Defendant relies on Marcus v. Search Warrants, etc., 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809; and Lee Art Theatre, Inc. v. State of Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313.

In State v. Vollmar, supra, this court considered in detail the scope and effect of the rulings in the Marcus and Copies of Books cases. It was there pointed out that those were cases wherein the primary object was to seek authority to destroy as obscene large quantities of books, and that the United States Supreme Court was concerned that constitutional safeguards were not provided to protect nonobscene publications from being seized and thus withheld from dissemination. The result of those cases was that in such a proceeding, before the seizure can be made, there must be an adversary hearing on the issue of obscenity. Defendant contends in this case that such an adversary hearing was required before the film could be seized as an incident to a lawful arrest. This question was considered at length in Bazzell v. Gibbens, D.C., 306 F.Supp. 1057, and we agree with the result there reached. In that case the defendants were charged in a state court with the possession and exhibition of an obscene motion picture. They sought relief in the Federal court on the basis that the seizure of the film was unlawful without the prior adversary hearing on the issue of obscenity. The court held: 'The question before us now is * * * whether or not the State, through its District Attorney, had a right to seize the film in question prior to holding an adversary hearing on the question of its obscenity. The Court is not unmindful of the decision in A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), wherein the United States Supreme Court held that the seizure there involved did violence to the First Amendment and that thus, in the absence of a pre-seizure adversary hearing, the seizure in that particular case was unconstitutionally impermissible. This Court is also cognizant of the fact that the Fourth and Seventh Circuit Courts of Appeal in Tyrone, Inc. v. Wilkinson, 410 F.2d 639 (CA4--1969), and Metzger v. Pearcy, 393 F.2d 202 (CA7--1968), saw fit in those particular cases to conclude that the decision in A Quantity of Books was controlling. I do not so find in the present case. I find nothing in the case law to indicate that in every case where a seizure of alleged obscene material is to be made, a pre-seizure adversary hearing is constitutionally required. Whether or not such a hearing is required must depend upon the nature and purpose of the seizure. If the seizure is made for the purpose of destroying the thing seized and for the purpose of preventing the dissemination of the material involved, then A Quantity of Books teaches that an adversary hearing prior to the seizure and/or destruction of the material is required in order not to run afoul of the First Amendment guarantee to the right of freedom of expression. But where, as here, a single copy of a film is seized for the sole purpose of preserving it as evidence to be used in a criminal action to be brought pursuant to a State statute already held, in all respect pertinent hereto, to be constitutional on its face, * * * such a seizure cannot be sait to be violate of the First Amendment's guarantees albeit a side effect of such a seizure coincidentally prevents that one particular copy of the film from being further disseminated pending the outcome of the criminal proceedings.' We conclude that for the reasons set forth in State v. Vollmar, supra, and Bazzell v. Gibbens, supra, the rules announced in the Marcus and Copies of Books cases do not control.

Lee Art Theatre, Inc. v. State of Virginia, supra, presents a different problem. In that case the operator of a motion picture theater was convicted of possessing and exhibiting lewd and obscene motion pictures in violation of a statute somewhat similar to § 536.280. The films were seized under the authority of a warrant issued by a justice of the peace 'on the basis of an affidavit of a police officer which stated only the titles of the...