State v. Silverman, 33267
| Decision Date | 19 January 1956 |
| Docket Number | No. 33267,33267 |
| Citation | 292 P.2d 868,48 Wn.2d 198 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Peter SILVERMAN, Appellant. |
Warner, Pierce & Peden, Seattle, for appellant.
Charles O. Carroll, F. A. Walterskirchen, James A. Andersen, Jr., Seattle, for respondent.
This is an appeal from a judgment and sentence upon conviction on fifteen counts of the crime of possession of obscene pictures or photographs with intent to show them, in violation of RCW 9.68.010.
Defendant Silverman is the owner and operator of the Sportland Arcade, located at 95 Seneca Street, in Seattle. The establishment is on two floors. The portion with which we are concerned has a public entrance from a stairway which is between Post and First Avenues on Seneca Street. It is a large room divided into two parts. A counter is located approximately in the center, where one can obtain change, magazines, cigarettes, etc. One part consists of so-called machines of skill, pool tables, and various amusement devices. The other part consists entirely of 'peep shows.'
The latter are shown in this manner. A large upright machine, called a 'Pan-O-Ram,' contains a moving picture projector and film. It has a slot for the entrance of coins to actuate the machine and film; and has a small viewing place in which to see the films that are portrayed inside. There were, at the time in question, about forty machines in the room, and some of them were located in dark rcesses. Prominently displayed on the outside of the machines were pictures of women in various stages of undress. Some of them had titles, such as 'Nude Film,' 'The Roommate Problem,' 'Clean Cut Kid,' and 'King Size.'
Some of the mechines required the deposit of a dims; others, the deposit of a quarter. There was a continuous film in each machine. After a coin was deposited the machine would light up and the film would show for a couple of minutes. Then a sign would flash, stating: 'Deposit Another Coin.' It would then click off. By depositing another coin the machine would reactivate. It required from eigth to fifteen coins to view the entire film.
On the evening of December 1, 1954, Detective E. M. Wesselius entered the establishment. Several members of the public were present viewing the films. Fred Lipke, a former police officer, was behind the counter making change for those who wanted to see the films. Detective Wesselius viewed the complete films in five separate machines. The following day, December 2, 1954, he returned at about 11 a. m., A janitor was sweeping the stairs. Alan F. Kelly, another former police officer, was behind the counter. Wesselius put in enough coins to observe that the same films were there with the exception of one which had a sign on it, 'Temporarily out of Service.' He walked up to Kelly and asked about that particular film. Kelly said, When asked how long before it would be available for public view, kelly replied that it would be a couple or three hours. Wesselius then placed Kelly under arrest for showing obscene films.
Three other police officers who had been stationed outside then came in. Those members of the public who were present were ordered out and the door was locked. The other officers then viewed several of the films and decided to confiscate sixteen machines containing films which they considered obscene. We will not relate in detail the filth shown on the films. Suffice to state that they portray under women engaged in extremely suggestive antics and gyrations designed to appeal to the baser passions of the men who viewed them.
In the meantime, Kelly called Silverman on the telephone, who, in turn, called B. Gray Warner, his attorney. Mr Warner came down and protested the seizure as being unlawful. Finally, it was agreed that the machines would be opened, the films removed and taken by the police, still over the protests of Mr. Warner. Silverman was arrested the following day.
Silverman and Kelly were charged jointly on sixteen counts. At the trial the state moved for the dismissal of Kelly in order that he might be a witness for the state, pursuant to RCW 10.46.110. The motion was granted and Kelly was called as a state's witness.
The defendants, before the trial, timely moved to suppress the evidence on the ground of an illegal search and seizure and on the further ground that the evidence was not obtained as the sequel to a legal arrest. The matter came on for hearing before Honorable James Hodson, who denied the motion. Similar motions were made and denied during the course of the trial. The trial was also before Judge Hodson and a jury was waived. Judge Hodson found the defendant not guilty on one count and guilty of fifteen counts.
Error is assigned to the denials of the motions to suppress the evidence; in admitting as exhibits the sixteen seized films; that there was insufficient legal evidence to support the trial court's findings of fact and conclusions of law; in denying appellant's challenge to the evidence; in denying motion in arrest of judgment, or in the alternative for a new trial; in entering judgment and sentence against appellant; and in entering judgment and sentence on each individual count, it being contended that only one single offense was committed, for which there can be only one single punishment.
RCW 9.68.010 provides:
'Every person who----
'(1) Sells, lends, or gives away, or has in his possession with intent to sell, lend, give away, or show any obscene or indecent book, magazine, pamphlet, newspaper, story paper, writing, picture, drawing, photography, or any article or instrument of indecent or immoral character; * * *
'(5) Causes to be performed or exhibited, or engages in the performance, or exhibition of any obscene, indecent, or immoral show, act, or performance; shall be guilty of a misdemeanor.'
We find no merit in appellant's contention that these films did not come within the purview of the statute. It makes it a crime for any person to have in his possession with intent to show, or cause to be exhibited, any obscene picture or photograph. A moving picture film is a series of pictures or photographs.
It is contended that, the arrest being made without a warrant, the seizure of the films was illegal. An arrest may not be made without a warrant for a misdemeanor if the offense is not committed in the arresting officer's presence. Conversely, an arrest for a misdemeanor may be made without a warrant when the offense is committed in the arresting officer's presence. State v. Llewellyn, 119...
To continue reading
Request your trial
-
State v. Melrose
...no misdemeanor was committed in the officers' presence. See State v. Miles, 29 Wash.2d 921, 190 P.2d 740 (1948); State v. Silverman, 48 Wash.2d 198, 292 P.2d 868 (1956). The mere fact of unlawful arrest does not necessarily vitiate the conviction. It is the admission of evidence obtained in......
-
State v. James, 36608
...jointly, but to be tried separately, was competent to testify for the prosecution without being discharged. In State v. Silverman, 48 Wash.2d 198, 201, 292 P.2d 868 (1956), the procedure urged by defendant James was followed, but procedure under the statute was neither challenged nor Some j......
-
Brakus v. Department of Labor and Industries
... ... 292 P.2d 865 ... Dan BRAKUS, Respondent, ... DEPARTMENT OF LABOR AND INDUSTRIES of the State of ... Washington, Appellant ... No. 33220 ... Supreme Court of Washington, Department 2 ... ...
-
City of Tacoma v. Harris
...unless the arresting officer has probable cause to believe that the offense is being committed in his presence. State v. Silverman, 48 Wash.2d 198, 292 P.2d 868 (1956). We defined probable cause for the purposes of this test in Sennett v. Zimmerman, 50 Wash.2d 649, 651, 314 P.2d 414, 416 (1......
-
Survey of Washington Search and Seizure Law
...the nature of the operation permitted a reasonable inference the object was contraband). State v. Silverman, 48 Wash. 2d 198, 202-03, 292 P.2d 868, 870 (1956) (when officer enters establishment as member of public and views "peep shows," arrest of person operating establishment is valid; el......
-
Survey of Washington Search and Seizure Law: 2005 Update
...the object, the nature of the operation permitted a reasonable inference that the object was contraband); see also State v. Silverman, 48 Wn.2d 198, 202-03, 292 P.2d 868, 870-71 (1956) (finding the "in the presence" requirement satisfied for possession of obscene pictures with intent to sho......
-
Survey of Washington Search and Seizure Law: 1998 Update
...nature of the operation permitted a reasonable inference the object was contraband); see also State v. Silverman, 48 Wash. 2d 198, 202-03, 292 P.2d 868, 870-71 (1956) (satisfying "in the presence" requirement for possession of obscene pictures with intent to show them when officer entered e......