State v. Hoyt

• Decision Date: 06 February 1970
• Docket Number: 41436,Nos. 41177,s. 41177
• Citation: 174 N.W.2d 700,286 Minn. 92
• Parties: STATE of Minnesota, Respondent, v. Melvin Lee HOYT, Appellant. STATE of Minnesota, Respondent, v. Joseph S. LEE, Appellant.
• Court: Minnesota Supreme Court

Page 700

174 N.W.2d 700

286 Minn. 92

STATE of Minnesota, Respondent, v. Melvin Lee HOYT, Appellant.

STATE of Minnesota, Respondent, v. Joseph S. LEE, Appellant.

Nos. 41177, 41436.

Supreme Court of Minnesota.

Feb. 6, 1970.

Syllabus by the Court

A review of the evidence in support of the charge that defendants sold certain books in violation of Minn.St. 617.241 supports the trial court's conclusion that the material contained in said books, taken as a whole, is obscene, as defined by the statute, and not the subject of free speech or press protected by the First Amendment.

Stacker, Silverstein, Burke & Radsom, St. Paul, for appellants.

Douglas M. Head, Atty. Gen., Richard H. Kyle, Sol. Gen., Joseph P. Summers, City Atty., Daniel A. Klas, Asst. City Atty., St. Paul, for respondent.

OPINION

MURPHY, Justice.

These appeals arise out of convictions for the sale of obscene books by clerks employed at 480 Wabasha Street in the city of St. Paul. Because the principal issues are identical, the cases have been consolidated for oral argument and disposition by this court.

Defendant Melvin Hoyt was charged with having sold three obscene books on August 31, 1967, The Way of a Man with a Maid, Adam and Eve, and Business as Usual. Defendant Joseph Lee was charged with having sold two obscene books on January 8, 1968, Lady Susan's Cruel Lover and True Love Stories of Growing Up. The complaints allege that the sales were in violation of Minn.St. 617.241.

Defendants were tried separately by the municipal court of the city of St. Paul without a jury and each was convicted, defendant Hoyt on November 21, 1967, and defendant Lee on May 15, 1968. Each was fined $100, the maximum penalty permitted for a misdemeanor. ¹

The issues raised in the two appeals are (1) whether the state has the burden of proving by qualified witnesses the elements of obscenity specified in A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1; (2) whether it was error to exclude other books offered by defendant Lee to establish contemporary community standards; and (3) whether as a matter of law under the tests established by Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515, and subsequent decisions of the United States Supreme Court citing that case, the First Amendment of the United States Constitution requires a reversal.

Section 617.241 under which defendants were convicted was adopted in 1961 and provides as follows:

It is unlawful for any person knowingly to exhibit, sell, print, offer to sell, give away, circulate, publish, distribute, or attempt to distribute any obscene book, magazine, pamphlet, paper, writing, card, advertisement, circular, print, picture, photograph, motion picture film, play, image, instrument, statute, drawing, or other article which is obscene. 'Obscene' for the purpose of this section, is defined as follows: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.

'Any person violating any provision of this section shall be fined not less than $20 per more than $100 for each offense.'

It may be assumed that this statute was drafted to embody the rules enunciated by the United States Supreme Court in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, where it was held that obscenity is not within the area of constitutionally protected speech or free press and defines it as follows (354 U.S. 489, 77 S.Ct. 1311, 1 L.Ed.2d 1509):

'* * * (W)hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.'

From an examination of the material which is the subject of these prosecutions, we conclude that the convictions should be affirmed. In light of the case law, ² the dominant theme of the material appeals to the prurient interest of the average person and, applying contemporary community standards, is patently offensive and utterly without redeeming social importance. It is not entitled to First Amendment protection under any rule or standard.

It is unnecessary to discuss the details of these books further than to observe that the theme of each is pointless save as it serves to relate the characters to repeated accounts of lewd and degrading episodes. They deal with filth for the sake of filth.

In answer to the appellants' assertion that the convictions are unsupported by evidence bearing upon the social value of the books and their acceptance by community standards, we can only say that such evidence would add nothing. The material speaks for itself. If it is not obscene, the word has lost all meaning. We identify it for what it is and hold that it is obscene as a matter of law.

Affirmed.

OTIS, Justice (dissenting).

The decision of the United States Supreme Court which now appears to govern prosecutions for obscenity is Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515, and its companion cases. Redrup is significant not only because there is a redirection of emphasis on the elements of obscenity but because of the reliance placed on the decision in a long series of per curiam reversals which have occurred subsequently. In reversing criminal convictions, which had been affirmed by appellate courts of New York and Kentucky, and a judgment ordering the destruction of certain magazines, which had been affirmed by the Supreme Court of Arkansas, the court in Redrup stated with respect to those decisions (386 U.S. 769, 87 S.Ct. 1415, 18 L.Ed.2d 517):

'In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. * * * In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. * * * And in none was there evidence of the sort of 'pandering' which the Court found significant in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31.'

The divergent attitudes of members of the Supreme Court were noted in a succinct per curiam opinion, but the court concluded that whatever constitutional view was brought to bear on the cases it was clear the judgments could not stand. Only Mr. Justice Harlan and Mr. Justice Clark dissented. A review of the material approved in Redrup, and in the subsequent cases which summarily reversed convictions on the basis of Redrup, persuades me that however offensive I find the books on which we are passing judgment in the instant case, we cannot, consistent with our duty to apply the Constitution as construed by the United States Supreme Court, sustain these convictions.

Pre-Redrup Decisions

Ten years ago, the Supreme Court reversed the New York Court of Appeals in Kingsley International Pictures Corp. v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512, holding that the state could not deny a license to show the motion picture 'Lady Chatterley's Lover' merely because the picture represented that adultery under certain circumstances may be proper behavior. Thereafter, in Manual Enterprises Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639, the court had occasion to pass on the application of a Federal statute prohibiting shipment of obscene material through the mail. Some of its observations foreshadowed recent decisions which I believe govern. The court said the magazines were not so offensive on their face as to affront current community standards of decency, which it equated with patent offensiveness or indecency, citing as follows A.L.I., Model Penal Code, Proposed Official Draft (May 4, 1962) § 251.4(1), which it had approved in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498:

'Material is obscene if, considered as a whole, its predominant appeal is to prurient interest * * * and if In addition it goes substantially beyond customary limits of candor in describing or representing such matters.' (Italics supplied.)

Under the Federal statute, the court said, there must be proof of both patent offensiveness and prurient appeal before the material may be found obscene. It went on to indicate that the test was a national standard of decency. In addition, the court made reference to, but did not decide, whether Roth v. United States, Supra, and its other decisions were aimed only at hard-core pornography and concluded by noting (370 U.S. 490, 82 S.Ct. 1438, 8 L.Ed.2d 648):

'* * * (T)he most that can be said of (the magazines) is that they are dismally unpleasant, uncouth, and tawdry. But this is not enough to make them 'obscene."

The rules governing obscenity were expanded in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct.1676, 12 L.Ed.2d 793. There the state court held a French moving picture to be obscene, and the Supreme Court reversed. In so doing, it rejected the argument that the question of obscenity is a purely factual judgment on which a jury's verdict is all but conclusive. Obscenity was said to be a matter of constitutional law which has to be decided by a court. The majority emphasized that obscenity is excluded from the constitutional protection only because it is "utterly' without redeeming social importance.' Again, the court cited and approved A.L.I., Model Penal Code, in emphasizing the necessity for a finding that the material 'goes substantially beyond customary limits of candor in describing or representing such matters.' 378 U.S. 191, 84 S.Ct. 1680, 12 L.Ed.2d 800. It applied to a state law the rule that 'contemporary community standards' means a national community and not a local community. In concluding, the court suggested (378 U.S. 195, 84 S.Ct. 1682, 12 L.Ed.2d 802):

'* * * State and local authorities might well consider whether their objectives in this area would be better served by laws aimed specifically at preventing...