Womack v. United States, 15749.

• Decision Date: 12 January 1961
• Docket Number: No. 15749.,15749.
• Citation: 294 F.2d 204,111 US App. DC 8
• Parties: Herman L. WOMACK, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

111 US App. DC 8, 294 F.2d 204 (1961)

Herman L. WOMACK, Appellant, v. UNITED STATES of America, Appellee.

No. 15749.

United States Court of Appeals District of Columbia Circuit.

Argued October 7, 1960.

Decided January 12, 1961.

Mr. Stanley M. Dietz, Washington, D. C., for appellant.

Mr. Maurice R. Dunie, Asst. U. S. Atty., with whom Mr. Oliver Gasch, U. S. Atty., and Mr. Carl W. Belcher, Asst. U. S. Atty., were on the brief, for appellee.

Before WILBUR K. MILLER, Chief Judge, and PRETTYMAN and BURGER, Circuit Judges.

PRETTYMAN, Circuit Judge.

After trial by a jury in the District Court appellant was convicted on twenty-six counts of an indictment for mailing information as to where and how obscene, lewd, lascivious, indecent, filthy and vile matter could be obtained, and on three counts for the actual mailing of such matter.¹ On this appeal he complains of error in the exclusion of evidence offered by him and the admission of evidence offered by the Government, illegality of his arrest and the search of his place of business, vagueness in the statute, insufficiency of the evidence against him, and error in the charge to the jury. We are of opinion no error occurred.

The evidence showed that appellant carried on a mail-order business in photographs. He solicited business by indiscriminately mailing proffers to names that he secured from various "physique" photographers. A card file containing 40,000 names was found in his office. In evidence was a letter signed by the appellant and sent to a business correspondent, in which he referred to a master mailing list as "the permanent sucker list." In another letter appellant wrote: "A model, if he has been photographed properly, has the potential sex appeal and drawing power that is characteristic of so many of the * * * models." And in the same letter he said: "In 1958, physique fans want their truck driver types already cleaned up, showered and ready for bed." A postal inspector testified Womack told him the pictures sold by a company of which he was the sole owner and operator "were intended for or that the purchasers were homosexuals."

The Government's first witness was a thirteen-year-old boy who had received in the mail, without solicitation or inquiry on his part, one of these proffers of photographs. He had handed the document to his father, who promptly notified the postal authorities. Other witnesses included boys nineteen, eighteen and fifteen years old, who had given their parents these advertisements. The circular required the prospect to sign a statement that he was an art student or art teacher, or engaged in some occupation that would involve a professional need for such photographs. This "prospectus" added that, if the recipient did not feel qualified as an art student, a home study course in figure drawing would be recommended to him. Womack admitted on the witness stand that he sent two circulars to the Boys' Club at a certain town.

Whatever may be the precise meanings of "obscene" and "filthy", or however broad or liberal community standards may be alleged to be, the photographs presented as Government exhibits in this case are within the definitions and outside the standards. No concept of art as art could include them. No concept of community standards could permit them.

Mr. Wigmore says:² "All evidential sources * * * are divided into three classes, namely, Testimonial, Circumstantial, and Autoptical." Concerning the latter he says:³ "A fact is said to be evidenced Autoptically when it is offered for direct perception by the senses of the tribunal without depending on any conscious inference from some other testimonial or circumstantial fact."

The photographs which are exhibits in this case are conclusive autoptical proof of obscenity and filth.

Although the dispositive question in Roth v. United States⁴ was the constitutionality of anti-obscenity statutes, the Court there laid down some guide lines in other phases of the problem. Obscenity and filth have always lacked protection in our jurisprudence. The test given by the Court, and followed here by us, is "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." And prurient interest, in the Court's definition, quoted from the Model Penal Code of the American Law Institute,⁵ includes "morbid interest in nudity, * * * which goes substantially beyond customary limits of candor". The impact upon the average person is the criterion. The Court quoted with approval the instruction of the trial judge that the jurors judge the material by present-day standards of the community.

Most of the difficulty which enshrouds discussion of the law concerning obscenity and filth develops upon consideration of books and magazine articles. Here arise problems of scienter, the meaning and effect of the...