State v. Kohler

• Decision Date: 13 July 1956
• Docket Number: No. A--322,A--322
• Citation: 123 A.2d 881,40 N.J.Super. 600
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Gerald KOHLER and Sam Coen, Defendants-Appellants. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 600

40 N.J.Super. 600

123 A.2d 881

STATE of New Jersey, Plaintiff-Respondent, v. Gerald KOHLER and Sam Coen, Defendants-Appellants.

No. A--322.

Superior Court of New Jersey.

Appellate Division.

Argued June 18, 1956.

Decided July 13, 1956.

Maurice C. Brigadier, Jersey City, for defendants-appellants (Seymour Margulies, Jersey City, on the brief).

Frank J. V. Gimino, Jersey City, for plaintiff-respondent (Frederick T. Law, Kearney, prosecutor.)

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

Defendants were convicted under an indictment charging them with having in their possession obscene moving picture films 'with intent to utter or expose (the same) to the view of another,' contrary to the provisions of N.J.S. 2A:115--2, N.J.S.A. They appeal.

The films, eight millimeters in size, were part of the stock in trade of a retail novelty store in Union City, N.J., operated by defendants, who were respectively the owner of the store and his clerk. At the opening of the trial below, defendants admitted possession of the movies with intent to sell the same. Furthermore, in response to the court's question, they through their attorney them agreed that the case involved but a single question, namely, whether or not the films were obscene.

Three rolls of these films were exhibited to the trial court (which heard the case without a jury) on the representation made by a State's witness that they were typical of the films found by the police at the store. In fact, the defendant who owned the store testified later that the three rolls, which he had seen at the time they were exhibited to the court, and the other rolls which were taken by the police from the store were all of the same character (and it may be noted, by the way, in answer to one of the arguments advanced on behalf of that defendant, that this very testimony contains in implication that he possessed actual knowledge of the character of these films). At the time of the oral argument before us we also, on the special request of defendants' counsel, viewed these three films.

Defendants have devoted a good part of their brief to a consideration of authorities and law review articles dealing with the law of obscenity. But this is no case in which to enter upon a discussion of that subject; there is no borderline question here. In fact, we see no reason even to state the nature of the three movies. It is sufficient merely to say, with respect to at least two of the three films, that the motion for acquittal made below on the ground that these films were not obscene was properly denied. The test question on the issue of obscenity, as stated in Adams Theatre Co. v. Keenan, 12 N.J. 267, 272, 96 A.2d 519, 521 (1953),

'is whether the dominant note of the presentation is erotic allurement 'tending to excite lustful and lecherous desire,' dirt for dirt's sake only, smut and inartistic filth, with no evident purpose but 'to counsel or invite to vice or voluptuousness."

Cf. Bantam Books, Inc., v. Melko, 25 N.J.Super. 292, 96 A.2d 47 (Ch.Div.1953), modified 14 N.J. 524, 103 A.2d 256 (1954). Not only the dominant note, but indeed the sole crude note of those two movies was erotic allurement of a pornographic character, within the standard above laid down. It could not be presented that the sale of these films served any socially defensible purpose, State v. Weitershausen, 11 N.J.Super. 487, 491, 78 A.2d 595 (App.Div.1951), nor, in our view, any venial purpose.

Counsel for defendants raise other questions on the appeal. But, as above indicated, all other issues were eliminated from the case by agreement of the attorney who appeared for defendants below. There is, to be sure, a rule--usually applicable where the attorney for a party is silent (i.e., fails to object) in the face of action taken or omitted below--which enables an appellate court under certain conditions to notice plain errors not brought to the trial court's attention. R.R. 1:5--1(a). But where the State does not attempt to bring in proof as to various issues because of an express waiver by defendants' attorney, an appellate court will not grant a new trial calling for proof of those issues--except in that unusual case where, after taking the waiver into account, it very definitely appears that the defendant has been convicted unjustly. Cf. State v. Haines, 18 N.J. 550, 565, 115 A.2d 24 (1955); State v. Picciotti, 12 N.J. 205, 211, 96 A.2d 406 (1953); State v. Ferrell, 29 N.J.Super. 183, 187, 188, 102 A.2d 70 (App.Div.1954). Applying this rather rigorous standard, we find none of the other contentions, now presented, to be deserving even of attention, except possibly one.

This contention is that the State did not, and probably could not, establish an intention on defendants' part to Utter and expose the films to the view of others, as charged in the indictment; for their purpose was but to Sell the films.

In examining this contention we may exclude from consideration the alleged intent to expose the films to others. For where an indictment, such as the one before us, charges a defendant with having the possession of an article with an intent to utter it and also with an intent to expose it to others, a conviction thereunder is sustainable even though the proofs establish only one of these intents. State v. Hill, 73 N.J.L. 77, 62 A. 936 (Sup.Ct.1906), affirmed 75 N.J.L. 689, 65 A. 1119 (E. & A.1907). It was there held with respect to this statute that an utterance, an exposure to the view of others, and a possession with the intent to utter or expose to view or to sell, 'each * * * may be considered as representing a phase of the same offense' (73 N.J.L., at page 79, 62 A. at page 936); and

'* * * when an offense may be committed by doing one of several things, the indictment may in a single count group them together and charge the defendant with having committed them all, and a conviction may be had on proof of any one of these things without proof of the commission of the others.' 73 N.J.L. at page 81, 62 A. at page 937.

The issue before us then comes down to this, namely, whether the proof or the admission of the intent to sell establishes the intent to utter alleged in the indictment. What is the meaning of Utter as used here? In Hill the court held, dealing with this statute, that utter means 'to put out, to pass off.' The intent of the defendants in this case to sell at retail these films which formed a part of their stock in trade would seem to constitute an intent to 'put out' the films--to hand over the possession of the same, as well as the title, to the retail purchaser. Cf. State v. Hill, supra, 73 N.J.L., at page 80, 62 A. at page 937. Hence the word 'utter,' taking it in its natural sence, embraces the sales under contemplation. People v. Rathbun, 21 Wend. 509, 527, 528, 533 (N.Y.Sup.Ct.1839); United States v. Fout, 123 F. 625, 628 (D.C.Mo.1903); State v. Mills, 146 Mo. 195, 47 S.W. 938, 941 (Sup.Ct.1898). In accord, see the authorities holding that the verb 'utter' means 'to cause to pass in trade.' Webster's New International Dictionary (2d ed.); People v. Descant, 51 Cal.App.2d 343, 124 P.2d 864, 867 (D.Ct.App.1942); State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198, 206 (Sup.Ct.1954).

Defendants, however, seem to claim that under this statute, N.J.S. 2A: 115--2, N.J.S.A., an utterance includes every species of putting out, other than a sale. The critical statutory words are these:

'Any person who, without just cause, utters or exposes to the view of another, or possesses with intent to utter or expose to the view of another, or to sell, any obscene or indecent book, pamphlet, picture or other representation, however made, * * * is guilty of a misdemeanor.'

The defendants rest their argument on the history of the statute. They seem to contend that the verbal expressions in Rev.1877, 234, § 44--

'utter or expose to the view of another, or have in his possession with intent so as to utter or expose to view'

and those in Rev.1877, 235, § 45--

'shall sell or offer to sell, or shall give away or offer to give away * * * or have in his or her possession with intent to sell or give away'

must be given mutually exclusive significations because they appear in separate sections, standing side by side. The Crimes Act of 1898, they say, merely brought together into one section, L.1898, c. 235, § 53 (in language which in substance remains with us today in N.J.S. 2A:115--2, N.J.S.A.) these expressions, in particular the words 'utter' and...