State v. Reichert, S

• Decision Date: 04 March 1975
• Docket Number: No. S,S
• Citation: 226 N.W.2d 196,67 Wis.2d 69
• Parties: STATE of Wisconsin, Respondent, v. Jacob REICHERT, Appellant. tate 88.
• Court: Wisconsin Supreme Court

Page 196

226 N.W.2d 196

67 Wis.2d 69

STATE of Wisconsin, Respondent, v. Jacob REICHERT, Appellant.

No. State 88.

Supreme Court of Wisconsin.

March 4, 1975.

Appellant Jacob Reichert (hereinafter defendant) was convicted on one charge H--189) of selling obscene material and two charges (G--8595 and G--8617) of possessing for sale obscene material, all contrary to sec. 944.21, Stats. The three charges were consolidated for trial to the court, following a mistrial on charge G--8595 resulting from a hung jury. By stipulation, all the testimony and exhibits received in the course of the jury trial were to be considered, insofar as they were relevant, in the consolidated trial to the court. On September 21, 1971, the defendant was found guilty of all three charges and on January 17, 1972 was sentenced to an indeterminate term of not more than three years in the Wisconsin state prisons on each charge, to run concurrently. Execution of sentence was stayed pending appeal.

The testimony at the jury trial revealed that on March 20, 1969, Detective Gerald Kennedy of the Milwaukee Police Department Vice Squad entered the J & R News Company, a store located at 831 North 27th Street in Milwaukee. A sign outside the store advertised 'Girlie Magazines.' Inside the store were racks and tables displaying various magazines, the covers of which portrayed nude or semi-nude males and females. Detective Kennedy selected a magazine entitled 'Denmark, Vol. 1, No. 2,' and handed it, along with five dollars, to the defendant, who was standing behind the counter. The defendant rang up the sale, put the money in the cash register and put the magazine in a paper bag.

Kennedy testified that he then identified himself as a police officer and showed the pages of the magazine to the defendant, asking him if he was aware of its contents. The defendant said he was.

The defendant testified that Detective Kennedy never showed him the pages of the magazine but that he was aware of its contents nonetheless.

Subsequent to the jury's inability to reach a verdict and the resulting mistrial, the defendant waived his right to a jury trial and the case (G--8595) was consolidated with two others (G--8617 and H--189) for trial to the court. No evidence was introduced at the consolidated trial but the parties stipulated: (1) That the defendant owned the J. & R. News Company at 831 North 27th Street on and between September 19, 1968 and May 27, 1969; (2) that the exterior and interior appearance of the store was the same at all material times on and between the above date; (3) that the defendant operated his store in the same manner on and between the above dates; (4) that on January 16, 1969, the defendant had in his possession for sale at his store the magazine 'Calle,' with knowledge of its contents; (5) that on May 27, 1969, the defendant, at his store, intentionally sold to Detective Orville Champagne of the Milwaukee Police Department the magazine 'Black and Sexy' with knowledge of its contents; (6) that the testimony and exhibits received during the trial of Case G--8595 may be considered by the court in Cases G--8617 and H--189 insofar as relevant. The entire transcript and exhibits were to stand as portions of the record in the consolidated trial.

After such stipulations, both parties rested. The trial court found the defendant guilty on all three charges.

Additional facts are included in the body of the opinion.

Shellow & Shellow by James A. Walrath, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen. by Thomas J. Balistreri, Asst. Atty. Gen., Madison, for respondent.

BEILFUSS, Justice.

Although several issues have been raised by the parties, we have chosen to discuss only those which we consider necessary to determine the appeal.

The defendant's first contention is that the complaints in Cases G--8595 and G--8617 were defective because of their failure to allege scienter, and that the county court was thus deprived of jurisdiction to proceed.

The charging portions of the complaints in Cases G--8595 and G--8617 provide that on the given dates, at 831 North 27th Street, Milwaukee, the defendant

'. . . did feloniously have in his possession for sale obscene pictures, to wit: a magazine entitled 'Denmark' ('Calle' in Case G--8617) containing pictures of nude and semi-nude women in provocative poses, with emphasis on the genital parts, contrary to Section 944.21(1)(a) of the statutes. . . .'

In State v. Schneider (1973), 60 Wis.2d 563, 211 N.W.2d 630, we held that an allegation of scienter, or criminal intent, in a criminal complaint was a jurisdictional prerequisite in obscenity cases and that, absent such allegation, the complaint charges no offense known to law and the proceedings are void ab initio. We also pointed out in Schneider that an allegation that certain conduct was performed 'feloniously' does not amount to an allegation of scienter.

By a divided court, based on Schneider, we hold that the complaints in Cases G--8595 and G--8617 were jurisdictionally inadequate and the judgments in such cases must be vacated.

In Case H--189, although the complaint and information sufficiently alleged scienter, the conviction was obtained under a statute that was unconstitutionally vague at the time. We hold that Madison v. Nickel (1974), 66 Wis.2d 71, 223 N.W.2d 865 controls, and the case must be remanded for a new trial.

The controlling Wisconsin decision regarding the definition of obscenity, both at the time of the offenses and at the time of conviction, was State v. Voshart (1968), 39 Wis.2d 419, 429, 159 N.W.2d 1, 6, where this court introduced the Roth-Memoirs ¹ test. Under such test, material was legally obscene if:

'. . . '(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.' . . .'

In Miller v. California (1973), 413 U.S. 15, 23, 24, 93 S.Ct. 2607, 2614--2615, 37 L.Ed.2d 419, the United States Supreme Court repudiated the Roth-Memoirs test, stating:

'. . . the Memoirs test has been abandoned . . . and no Member of the Court today supports the Memoirs formulation.

'. . . we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

'The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. . . .'

The defendant raises the same three specific objections that were raised in State ex rel. Chobot v. Circuit Court (1973), 61 Wis.2d 354, 212 N.W.2d 690, and in Nickel supra: (1) That the question of whether statewide or national community standards should be applied had not been decided; (2) that the now-infirm 'utterly without any redeeming social value' test was applied; and (3) that the law at that time contained no specific definition of sexual conduct, the depiction of which was proscribed.

With respect to community standards, it is to be noted that although 'Miller rejected 'contemporary community standards' on a national scale as unworkable, (t)his court has never accepted a national community standard.' State ex rel. Chobot v. Circuit Court, supra, page 364, 212 N.W.2d page 695. As stated in McCauley v. Tropic of Cancer (1963), 20 Wis.2d 134, 149, 121 N.W.2d 545, 553, 'We conclude that for the purposes of our statute, no distinction ought to be made between the standards of different communities within the state.' Thus it is apparent that a statewise standard was the rule prior to the conduct and convictions in the case at bar.

As to the element of social value, this court stated in State ex rel. Chobot, supra, 61 Wis.2d pages 365, 366, 212 N.W.2d page 696:

'In McCauley v. Tropic of Cancer, supra, this court took the view that a...