State v. Smith

• Decision Date: 13 November 1967
• Docket Number: No. 51904,51904
• Citation: 422 S.W.2d 50
• Parties: STATE of Missouri, Respondent, v. Rollin Eugene SMITH, Appellant.
• Court: Missouri Supreme Court

Page 50

422 S.W.2d 50

STATE of Missouri, Respondent, v. Rollin Eugene SMITH, Appellant.

No. 51904.

Supreme Court of Missouri, En Banc.

Nov. 13, 1967.

Rehearing Denied Dec. 11, 1967.

Norman H. Anderson, Atty. Gen., John H. Denman, Atty. Gen., Jefferson City, for respondent.

Newmark & Baris, Irl B. Baris, St. Louis, for appellant.

HOUSER, Commissioner.

Rollin Eugene Smith, a clerk in a bookstore on McPherson Avenue in St. Louis, has appealed from a workhouse sentence of 30 days and a fine of $500 imposed upon him following a jury verdict of guilty of possessing obscene matter (the book 'Candy') with intent to sell, in violation of § 563.280, V. A.M.S. ¹

We have jurisdiction of this appeal, notwithstanding it is a misdemeanor case, because the construction of the state and federal constitutions is necessary to its determination. Constitution of Missouri, 1945, Art. V, § 3, V.A.M.S.

On March 31, 1965 police detective Edwin Kuster entered the bookstore and purchased from defendant a paperback version of Candy, published by Brandon House. Asked if he was familiar with the book defendant answered that he had read it and found it very amusing. The detective left the store, returning shortly thereafter with another detective. The officers placed defendant under arrest. He was then asked if there were other copies of the book in the store. Answering in the affirmative be showed the detectives where they were. The detectives confiscated 8 additional copies of the book.

Appellant relies upon twelve points of error.

NON-OBSCENITY AS A MATTER OF LAW?

Appellant urges that the court erred in not ruling as a matter of law that Candy is not obscene and is constitutionally protected under state and federal constitutional provisions relating to freedom of speech and of the press and due process of law. ²

'The right of free speech is not an absolute right at all times and under all circumstances.' The right of freedom of speech 'is subject to the state's right to exercise its inherent police power.' State v. Becker, 364 Mo. 1079, 272 S.W.2d 283, 288, 289. '(O)bscenity is not within the area of constitutionally protected speech or press.' Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498, followed in State v. Vollmar, Mo.Sup., 389 S.W.2d 20, 27. The Supreme Court of the United States accepts it as a postulate that "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, 1327, 1 L.Ed.2d 1469.

The constitutional issue having been raised, it is our duty to reach an independent judgment on the mixed question of law and fact whether Candy is obscene. State v. Vollmar, supra, 389 S.W.2d, l.c. 27, 28(18). ³ A definition of the term 'obscenity' is a prerequisite. In 1965 this Court in Vollmar, following the 1957 opinion of the Supreme Court of the United States in Roth v. United States, supra, applied the definition of obscenity concurred in by a majority of the justices of that Court, namely, that 'Obscene material is material which deals with sex in a manner appealing to prurient interest' and applied the test approved therein, 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' In subsequent decisions individual judges or several but less than a majority of the Court have expressed views which, if eventually adopted by a majority of the Court, will add further refinements and qualifications to the Roth definition. 'Two members of the Court have consistently adhered to the view that a State is utterly without power to suppress, control or punish the distribution of any writings or pictures upon the ground of their 'obscenity.' (Ginzburg v. United States, 383 U.S. 463, 476, 482, 86 S.Ct. 942, 950, 953, 16 L.Ed.2d 31 (dissenting opinions); Jacobellis v. State of Ohio, 378 U.S. 184, 196, 84 S.Ct. 1676, 1682 (concurring opinion); Roth v. United States, 354 U.S. 476, 508, 77 S.Ct. 1304, 1321 (dissenting opinion).) A third has held to the opinion that a State's power in this area is narrowly limited to a distinct and clearly identifiable class of material. (Ginzburg v. United States, 383 U.S. 463, 499, and n. 3, 86 S.Ct. 942, 956 (dissenting opinion), referring to hardcore pornography.) Others have subscribed to a not dissimilar standard, holding that a State may not constitutionally inhibit the distribution of literary material as obscene unless '(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 While on matters involving the construction of the federal constitution the controlling decisions of the United States Supreme Court must be followed, this Court is not required to apply every test devised by each of the nine justices. Our duty in this respect is discharged when we apply the test on which the Court has spoken with the authoritative voice of a majority. In the case of Candy, however, it is a matter of no consequence whether we restrict our consideration to the test of Roth, or go further and apply the 'patently offensive' test or the 'social value' test. Under neither of the three tests is Candy entitled, as a matter of law, to constitutional protection. Under all three of the tests the conclusion is impelled, by a reading of the book, that we cannot say as a matter of law that Candy does not make a strong, urgent and demoralizing appeal to prurient interest in sex; or that the material is not an affront to contemporary community standards relating to the description or representation of sexual matters and therefore is not patently offensive; and that the material is not utterly without redeeming social value.

to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value,' emphasizing that the 'three elements must coalesce,' and that no such material can 'be proscribed unless it is found to be utterly without redeeming social value.' A Book Named 'John Clelands' Memoirs of a Woman of Pleasure' v. Attorney General of Com. of Massachusetts, 383 U.S. 413, 418--419, 86 S.Ct. 975, 977--978 (16 L.Ed.2d 1). Another Justice has not viewed the 'social value' element as an independent factor in the judgment of obscenity. Id., at 460--462, 86 S.Ct. 975, 998--999 (dissenting opinion).' Quotation from Per Curiam opinion of the Supreme Court of the United States in Redrup v. New York, May 8, 1967, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515.

Considering the book as a whole, and not by one or a few isolated words, phrases, paragraphs or chapters, from the standpoint of the average person, applying contemporary community standards, ⁴ we cannot conscientiously say as a matter of law that the dominant theme of the material does not appeal to prurient interest in sex. It begins, mildly, with a professor pretending to drop his lecture notes, and, in retrieving them, showing his backside to the class, 'which laughed appreciatively.' It ends, disgustingly, with Candy standing before a Buddhist statue, meditating on the tip of its nose. Struck by lightning, the statue falls half burying Candy and a dung-covered 'holy man,' who are thrown together, with Candy's shift forced above her waist and her shapely bare legs locked about the holy man's loins in such juxtaposition that he has an erection and his 'taut member' eases into her 'tight little lamb-pit.' She is pinioned in that position by the slipping of the statue into such a position that the tip of its nose slips into Candy's 'marvellous derriere.' She relaxes and begins to enjoy both penetrations when she suddenly realizes that the 'holy man' is her father. In between these two rectal ruminations there are, in the paperback edition, 189 pages of salacious smut. Reasonable minds could find that Candy is an episodic account of rotten erotica; a sick saga of sex; a series of sensational sex encounters connected by a thin tissue of so-called 'plot' which serves as the excuse to hold it together. The beginning chapters set the dominant theme of the book, which a jury could find is a direct appeal to prurient interest in sex, namely, that for a delightfully appealing young girl with every physical attraction to give herself fully to the satisfaction of the sexual needs of every male with whom she comes in contact is not only a duty but The prurient interest test

a beautiful and thrilling privilege. This theme is introduced in the setting of an attempt at seduction by Candy's professor, whose blandishments bring her to the yielding point when they are interrupted by a male student. The professor and the boy go into an adjoining room where Candy later finds them naked, dancing about wildly, flailing each other with wet towels, 'Moaning and sobbing, their bodies reddened and welted.' Next, Candy takes the initiative and arranges to satisfy the gardener's sexual needs in a sultry and highly provocative bedroom scene. Final consummation of the sex act (the 'terrible trust to the hilt') is interrupted by Candy's father, who attacks the gardener. The latter nearly brains him with a trowel. At the hospital, under her father's bed, Candy takes care of her Uncle Jack's sexual needs until interrupted by a nurse, who in turn is ravished in a tumultuous melee. Preceding their trip to the hospital a series of conversations with Candy's Aunt Livia are related. This particular account is unleavened obscenity of the most degrading nature. This bit of immoral writing is interlaced with and adorned by every conceivable four-letter Anglo-Saxon word of the level of the sewer. At this point in the book the subject of masturbation is treated by introducing a young doctor who advocates masturbation as the only sex mode that permits complete fulfillment and mental health, and blames...