State v. Onorato

• Citation: 3 Conn.Cir.Ct. 438,216 A.2d 859
• Decision Date: 23 December 1965
• Docket Number: No. CR,CR
• Parties: STATE of Connecticut v. James J. ONORATO. 15-6333.
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division

Page 859

216 A.2d 859

3 Conn.Cir.Ct. 438

STATE of Connecticut v. James J. ONORATO.

No. CR 15-6333.

Circuit Court of Connecticut, Appellate Division.

Argued Oct. 25, 1965.

Decided Dec. 23, 1965.

Alvin Pudlin, New Britain, for appellant (defendant).

Mark S. Shipman, Asst. Pros. Atty., for appellee (state).

KOSICKI, Judge.

The defendant was convicted of selling a book, allegedly obscene, in violation of § 53-243 of the General Statutes, the pertinent part of which reads as follows: 'Any person who * * * sells * * * or has in his possession with intent to sell * * * any book * * * containing obscene, indecent or impure language * * * shall be' punished. The only evidence of obscenity was the book itself, which is before us as an exhibit. Neither side offered and expert testimony to assist or guide the trial court in reaching its decision; nor was such evidence, though admissible, indispensable in order that the court reach the ultimate conclusion that the work in question was obscene within the proscription of § 53-243 and therefore not within the protection of the safeguards of our federal and state constitutions relating to freedom of speech and expression. See Smith v. People of State of California, 361 U.S. 147, 165, 80 S.Ct. 215, 4 L.Ed.2d 205 (Frankfurter, J., concurring); Stiwinter v. Roberts, 153 Conn. 240, 215 A.2d 413.

The essential facts are not challenged. ¹ On August 4, 1964, a police officer of the New Britain police department purchased from the defendant for seventy-five cents a paperbound copy of a book entitled 'The Sex Diary of Gerard Sorme,' written by Colin Wilson, a reputable author, and the first of an artistic coterie in postwar England known as angry young men. The book was displayed openly in a bookrack containing some 200 different titles and located in a combination variety store and bus terminal. The defendant, who was an employee of a corporation owning and operating this place of business, upon making the sale placed the book in a paper bag and delivered the package to the police officer. The defendant had been the owner and operator of the store prior to its incorporation late in 1963. After incorporation, he still continued to conduct the business, operated the store, and was in supreme authority.

The foregoing facts, found by the court, are not vulnerable to the defendant's attack by his motion to correct the finding. Whatever corrections are sought are of an inconsequential nature and would in no material respect influence our consideration of the defendant's claims as to erroneous conclusions and the ultimate decision of guilt reached by the trial court.

The issues of law raised by the defendant may be simply stated: (1) Was the book in question obscene within the terms of § 53-243 and under the constitutional standards established by the Supreme Court of the United States? (2) Was there error in the finding that the defendant knew that the book was obscene? (3) Did the court err in finding the defendant guilty of the crime charged on evidence beyond a reasonable doubt?

A general outline of the contents of the book, which we have read, appears on its jacket thus: 'Cast in the traditional literary form of a diary, it is a day-by-day account of Gerard Sorme's adventures--with Gertrude and her niece Caroline, with Carlotta, the German servant girl, with Diana, wife of a somewhat mad composer and inventor, and with Cunningham, who practices a form of sexual 'black magic'.' This is a rather modest appraisal, both in the scope of its theme and in the number of the erotic characters and the lubricious episodes in which they are linked. The sexual scenes and experiences, narrated in meticulous detail and without a trace of shyness or reticence, are vivid portrayals or broad hints of libidinous relations and interactions of a heterosexual and homosexual sort and include thinly disguised suggestions of practices sexually perverse. The author, in expressing his aims on the cover of the book, states that it was written because he felt that 'no one has ever treated sex, from the man's angle, with intelligence as well as frankness.' He entertains the hope that the book speaks for itself. We may add the comment that the book also speaks at times in a language which is not uttered in our classrooms, or in public places, or in the living and drawing rooms of private homes; nor does it serve a useful purpose in polite conversation or tend to ennoble the animated murmur of genteel society over its fragrant and stimulating teacups.

The defendant's first claim of error does not present a new question of law. 'Obscenity is not protected by the unconditional language of the first amendment to the federal constitution. Roth v. United States, 354 U.S. 476, 483, 77 S.Ct. 1304, 1 L.Ed.2d 1498. The primary requirements of decency may be enforced against obscene publications. Kingsley Books, Inc. v. Brown, 354 U.S. 436, 440, 77 S.Ct. 1325, 1 L.Ed.2d 1469; Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031. The same holds true of article first, § 6, of the constitution of Connecticut.' State v. Sul, 146 Conn. 78, 84, 147 A.2d 686, 690.

In every appeal from a conviction based upon the sale of a book allegedly obscene, the determination of the issue of obscenity involves a constitutional judgment which the appellate court is under a duty to make independently. 'Hence we reaffirm the principle that, in 'obscenity' cases as in all others involving rights derived from the First Amendment guarantees of free expression, this Court cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.' Jacobellis v. State of Ohio, 378 U.S. 184, 190, 84 S.Ct. 1676, 1679, 12 L.Ed.2d 793. In State v. Andrews, 150 Conn. 92, 100, 186 A.2d 546, 551, Chief Justice Baldwin, quoting from the dissenting opinion of Mr. Justice Harlan in Roth v. United States, supra, 354 U.S. 497, 77 S.Ct. 1315, reiterated the same rule as applicable in state cases in Connecticut: '[T]he constitutional question whether a particular book may suppressed cannot be a 'mere matter of classification, of 'fact,' to be entrusted to a fact-finder and insulated from independent constitutional judgment. * * * The suppression of a particular writing or other tangible form of expression is, therefore, an individual matter, and * * * raises an individual constitutional problem, in which a reviewing court must determine for itself whether the attacked expression is suppressable within constitutional standards.' 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.' We are faced then with the task of forming our own independent judgment on the question whether under all the circumstances the defendant violated § 53-243. This requires that we first determine whether the book on which the prosecution in this case was based was obscene within the meaning of the Jacobellis-Roth-Sul-Andrews test.

The test contemplates that, to be excluded from constitutional protection, any manifestation or work of speech or expression, considered as a whole, must have a predominant appeal to prurient interest, that is a shameful or morbid interest in nudity, sex or excretion, and must go substantially beyond the customary limits of candor in describing or representing such matters; and that it is utterly without redeeming social importance and serves no useful social purpose. The apt criterion is whether to the average person, applying contemporary community standards, on a national basis, the dominant theme of the material, taken as a whole, appeals to prurient interest. Jacobellis v. State of Ohio, supra, 378 U.S. 191, 195, 84 S.Ct. 1676; Roth v. United States, supra, 354 U.S. 484, 487, n. 20, 489, 77 S.Ct. 1304; State v. Andrews, supra, 150 Conn. 102, 186 A.2d 546; State v. Sul, supra, 146 Conn. 85, 147 A.2d 686.

It has often been asserted that the legislative intendment of a 'censorship' statute such as ours was to prevent dissemination of material deemed harmful to the moral, disciplined, healthful and happy development of children. This objective can be and has been reached under the provisions of § 53-244, aimed specifically at the sale or delivery of such material to persons under the age of eighteen years. The enforcement of a similar statute in Rhode Island has been cited with favor by Mr. Justice Brennan in Jacobellis, supra, 378 U.S. 195, n. 11, 84 S.Ct. 1676. See State v. Settle, 90 R.I. 195, 156 A.2d 921.

In applying the foregoing tests of obscenity, we make no pretense of passing a judgment on the literary value or artistic merit of the book before us and subject to our original examination. We may note in passing, however, that from antiquity to our present day many works have found acceptance among the community at large as well as among those of discriminating literary taste, notwithstanding their apparent crudities in theme and a base vulgarity in expression. ² The modern works, having a lawful circulation, and exhibiting a likeness in content and looseness of expression, are too numerous to mention. Although we may deplore the atavistic regression in words and phrases so often encountered in such books and express individual concern that this tendency, if unabatedly persisted in, will tend to reduce the beauty and majesty of our civilized language--evolved over thousands of years of thought-provoking struggle--to a crumbling, shapeless, inordinate rubble, we cannot asseverate to ourselves, in the performance of our judicial duties, the role of arbiters of words, laguage or expression. Grove Press, Inc. v. Christenberry, 2 Cir., 276 F.2d 433, 438-439. We can only adjudge whether or not the defendant has violated § 53-243 in selling an obscene book.

In further...