Yudkin v. State

• Decision Date: 05 July 1962
• Docket Number: No. 300,300
• Citation: 182 A.2d 798,229 Md. 223
• Parties: Samuel YUDKIN v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 223

229 Md. 223

182 A.2d 798

Samuel YUDKIN v. STATE of Maryland.

No. 300.

Court of Appeals of Maryland.

July 5, 1962.

John Silard, Washington, D. C. (Rauh & Silard, Washington, D. C., and Samuel B. Groner, Silver Spring, on the brief), for appellant.

Edward deGrazia, New York City, Edward L. Genn, Benjamin Brown, Silver Spring, and Speiser, Washington, D. C., on brief for American Civil Liberties Union, amicus curiae.

Fred Weisgal and Rowland Watts, Baltimore, on brief for Md. Civil Liberties Union, amicus curiae.

Joseph S. Kaufman, Deputy Atty. Gen., and Robert S. Bourbon, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, and Leonard T. Kardy, State's Atty. for Montgomery County, Rockville), on the brief, for appellee.

Before BRUNE, C. J., and PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

HORNEY, Judge.

Claiming that the book Tropic of Cancer, written by Henry Miller, is neither lewd, obscene nor indecent, the defendant-appellant (Samuel Yudkin) has appealed his conviction for selling a copy of it in violation of Code (1957), Art. 27, § 418.

On October 26, 1961, two members of the Montgomery County police force entered the bookstore of the defendant in Bethesda where several copies of the alleged obscene book were on display. The officers purchased a copy and after some conversation with the bookseller, left the store to swear out a warrant for his arrest. At the time of the arrest another copy of the book was seized as additional evidence. Both copies were subsequently offered and received as exhibits.

At the trial before a jury of men and women, one of the arresting officers testified to the circumstances leading up to the arrest and prosecution of the defendant. There was also other evidence tending to show that the defendant sold the book 'knowing' it to be obscene. When the defendant was asked by a newspaper reporter before the book was placed on sale if he knew he might be subject to arrest, he replied that no one had told him not to sell it. And, although he stated to the police when he sold them a copy of the book that he was not familiar with the ruling of the State's Attorney that the book was obscene, the defendant admitted on cross examination at the trial that he knew three weeks before his arrest that the employees of a drug store in Montgomery County had been arrested for selling 'under the counter paperback copies of Tropic of Cancer.' The record further indicates that the defendant, though he had some doubt as to whether the book could be banned, chose to take the risk that a court would not declare it to be obscene. Just prior to the close of the State's case, the trial court sent the jury to the juryroom to read the book in question. But no evidence was offered by the State concerning literary merit, contemporary community standards and the effect of the book with respect to prurient interest.

The defendant, who had read the book as well as critical reviews of it and apparently believed that it was not unlawful to sell the book, testified at length that in his opinion the book had literary merit and was not obscene, and stated his reasons for having the book in his possession and offering it for sale. A favorable book review, (From Under the Counter to Front Shelf, by Harry T. Moore, published in the New York Times Book Review, June 18, 1961), was also received in evidence as an exhibit. But the defendant was not permitted to offer the testimony of certain witnesses, such as professors of English literature, literary critics, authors of books, and other persons, who may have been able to qualify as experts, or to introduce as exhibits such publications as comparable books and other literary critiques and comments, to show that Tropic of Cancer and not obscene; that it would not arouse the prurient interest of the average person; that it had literary merit; and that it had received critical acceptance as literature. The trial court also rejected evidence that the book had been cleared by the Post Office Department for circulation through the mails and that contemporary books (such as Memoirs of Hecate County by Edmund Wilson, Lolita by Vladimir Nabokov, By Love Possessed by James Gould Cozzens, and Lady Chatterley's Lover by D. H. Lawrence) on sale generally in Montgomery County contained words and descriptions claimed to be comparable to those in Tropic of Cancer. Nor would the court allow the introduction of any other evidence as to contemporary community standards. Timely exceptions were taken to the exclusion of such evidence.

A special motion to dismiss the indictment as well as motions for a directed verdict, on the ground, among others, that there was no evidence that the defendant sold the book knowing it to be obscene, were also denied.

In submitting the case to the jury, the trial court, after informing the jury that it was the 'sole judge of the law as well as the facts,' further advised it that the question was whether the book would appeal to the prurient interests of the average person, and that, as a jury, it was required to determine the standards of the community and to decide whether the book as a whole tended to 'incite lustful thoughts.' But the court refused to give an instruction that if the jury found Tropic of Cancer to be a 'work of genuine literary intent and effect' it should acquit the defendant. Nor did the court give any other instruction indicating that literary purpose, merit or acceptance had any bearing on the offense charged or the defense to it. The jury returned a verdict of guilty and the defendant was sentenced to six months in jail.

Four questions are posed by the appeal. Inasmuch as it appears there was sufficient evidence to take the case to the jury, we find no error in the denial of the motions for a directed verdict. Of the remaining three questions, it is necessary to discuss only one of them on this appeal. This relates to the admissibility of the evidence. As to this, we think the trial court was in error when it excluded evidence proffered by the defendant to show that the book is not obscene.

The test of obscenity as laid down in Roth v. United States (and Alberts v. California), 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), is 'whether to the average person, applying contemporary community standards, the dominent theme of the material taken as a whole appeals to prurient interests.' And, since the issue of whether the defendant was innocent or guilty necessarily involves a determination of whether Tropic of Cancer was in fact obscene, we think it is implicit, under the Roth test, that all relevant evidence (if it is otherwise competent) concerning community standards and prurient interest, as well as evidence bearing on literary merit, is admissible to show either obscenity or the lack of it.

We reaffirm the holding in Monfred v. State, 226 Md. 312, 173 A.2d 173 (1961), cert. den. 368 U.S. 953, 82 S.Ct. 395, 7 L.Ed.2d 386 (1962), where there was a dearth of evidence other than the salacious material itself, that exhibits of allegedly obscene material speak for themselves and must in every case be perused and examined with care. But that it not to say--even though the court or jury (as the case may be) must in the end determine the issue of obscenity--that other competent...