United States v. Hochman, 12858.
Decision Date | 07 June 1960 |
Docket Number | No. 12858.,12858. |
Citation | 277 F.2d 631 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Samuel R. HOCHMAN, Defendant-Appellant. |
Court | U.S. Court of Appeals — Seventh Circuit |
Morton Gollin, Herbert R. Manger, Milwaukee, Wis., for appellant.
Edward G. Minor, U. S. Atty., Matthew M. Corry, Asst. U. S. Atty., Milwaukee, Wis., for appellee.
Before HASTINGS, Chief Judge, and SCHNACKENBERG and CASTLE, Circuit Judges.
In the district court, Samuel R. Hochman, defendant, was found guilty by the verdict of a jury of a violation of 18 U.S.C.A. § 1462, as charged in counts I and III of an indictment, and judgment was entered for his imprisonment and a fine of $1,000. He was found not guilty on count II.
Count I charged that defendant on or about May 13, 1957 at the city of Milwaukee, in the eastern district of Wisconsin, "did knowingly take from a common carrier, to-wit, the ABC Freight Forwarding Company, Milwaukee, Wisconsin, five (5) copies of an obscene publication called "The Sex Factory" by H. Tennob, which were transported in interstate commerce from New York City, New York, to Milwaukee, Wisconsin * * *." In count III the same charge was made as to a publication called "Virgins Come High".
On this appeal, the errors assigned by defendant relate to the alleged failure of the government's proof to establish that the defendant knowingly took two books (exhibits 1 and 3) from a common carrier, and to the exclusion of certain evidence.
Exhibits 1 and 3 are books bearing the titles "The Sex Factory" and "Virgins Come High". Defendant's counsel upon oral argument in this court admitted for the purpose of this case that these two books are obscene.
Chronologically arranged, the following facts appeared at the trial:
Defendant testified he had never read these two books.
Max Padell, a witness for the government testified that on the occasion of defendant's visit in May, 1957, he let defendant select his own books. Padell could see Hochman checking the titles of the books for about 15 minutes. He was checking by glancing through them. Defendant riffled the pages, although Padell did not actually see him read the books.
Julian Clark, an FBI agent, testified that the carton when opened in defendant's store was found to contain books with 20 different titles.1
18 U.S.C.A. § 1462 provides:
It is defendant's contention that, even if the two books are regarded as obscene, he did not knowingly take the same from the express company, and, therefore, the judgment should be reversed and he should be discharged. The meaning of this contention is narrowed by his attorney's admission, for the purpose of this case, that the books are obscene. Moreover, it is not denied that these books were a part of a shipment moving in interstate commerce, that delivery was made of the carton and its contents to him and that he accepted said delivery. As we understand the contention of defendant's counsel about lack of knowledge, it is that defendant did not know that the two books "Sex Factory" and "Virgins Come High" were, as a matter of fact, obscene. We are not convinced by this contention. These books were among those selected by him before he went to New York City and they were scrutinized by him in the Padell Book Shop to the extent that he wished to inspect them. Whether it was a cursory examination, or whether it was more thorough, it was such an examination as satisfied him that he was buying pornographic merchandise which he could sell at a big profit. Defendant testified that these books, which were of the soft paperback variety, printed upon a cheap stock of paper, he bought at $1.50 and intended to sell at $3 each. Not only are the books admittedly obscene, but they are so blatantly so that their obscenity screams forth from the picture on the cover, and others interspersed through the interior of the books, and the pornography in the printed language in page after page is so overwhelming that it is incredible that defendant did not know what he was buying. At least, we cannot say that the jury was not justified in drawing a reasonable inference that defendant knew the obscene nature of these books when he bought them and had them delivered to his store.
The district court refused to permit defendant to introduce evidence to show that books similar to those involved in this case were being sold openly in the city of Milwaukee and that a book entitled "Lady Chatterley's Lover" was the best seller in Milwaukee at the time of the trial. Counsel says that this evidence was designed to show contemporary community standards.
The trial court did...
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