Donnenberg v. State

Orth, J., delivered the opinion of the Court. The appellants were convicted by the Criminal Court of Baltimore of violating Maryland Code, Art. 27, § 418(a) which makes it a misdemeanor for any person to “knowingly * * * sell, * * * give away, or show or have in his or her possession ⁵⁹⁵ with intent to sell or give away, or to exhibit [or] show * * * any lewd, obscene or indecent * * * magazine * * * or photograph * * Art. 27, § 418(b) establishes a rebuttable presumption that any person found violating the statute in any bookstore or mercantile establishment and found to be an employee of the person actively engaged in the operation of such an establishment, was doing so within the scope of his employment, within the course of the employer’s business and with the knowledge of the employer. The subject matter of the prosecutions was four magazines, more accurately described as picture books or bound photographs. The publications, I.N.S. International Nudist Sun %3 and Percy No. 1, were introduced as evidence against Jacob Kramer, the proprietor of Book Nook, Incorporated which had two locations, one at 216 E. Baltimore Street and one at 406 E. Baltimore Street; I.N.S. International Nudist Sun §3 against David Donnenberg, the employee of Kramer at the 216 E. Baltimore Street store; Percy No. 1 against Jacob Shapos, the employee of Kramer at the 406 E. Baltimore Street store; I.N.S. International Nudist Sun %2 and Degraded in Bondage against Louis Marrichi, the proprietor of Cut Price Book Company located at 645 N. Howard Street and against Charles Coppolino, his employee.

At the close of the evidence offered by the State, the appellants made motions for judgment of acquittal on each count of each indictment against them. The motions were denied and no evidence was proffered by the appellants. The contentions of the appellants on this appeal are in substance as follows: 1. The evidence was not sufficient to sustain the convictions in that: a) it did not prove the appellants “knew the contents of the material or believed that the material violated the law” b) it did not prove the publications were obscene 2.

The trial court erred in permitting two witnesses for the State to testify as expert witnesses. With the exception of the magazine obtained from Donnenberg, the publications were purchased by Lieutenant William Roch ⁵⁹⁶ ford, a member of the Criminal Investigation Vice Section of the Baltimore City Police Department. He purchased Degraded in Bondage at a price of $5 and I.N.S. \2 at a price of $3 from Coppolino and Percy No. 1 from Shapos at a price of $5. In the store at 216 E. Baltimore Street the officer took I.N.S. $3 off the rack and was about to remove the plastic wrapper with which it was covered, when Donnenberg came from behind the counter and said he could not open it, he would have to pay for it first.

The officer identified himself and said he was making an inspection and Donnenberg “became very excitable and said that he was closing down, he wasn’t selling anything.” The officer offered to purchase the magazine but Donnenberg said “he was sick, he had just gotten out of the hospital before that, and he was selling out or going out of business and he was closing the store.” He would not give the officer any information, so the officer “just took the book out and he locked the door.” Objection was made to the admission in evidence of the magazine on the ground that it was taken by force and the court reserved its ruling. The record does not disclose a ruling was made, but the magazine was admitted in evidence. Donnenberg is charged under a one count indictment that he “unlawfully did sell and give away to William F. Rochford, a certain lewd, obscene and indecent magazine of certain female and male persons whose names are to the Jurors aforesaid unknown, to wit: I.N.S. International Nudist Sun #2, American Edition.” Although Donnenberg does not specifically raise the point on appeal, we find no legally sufficient evidence in the record that he sold or gave away the magazine. By the testimony of the officer he “just took the book out” after Donnenberg refused to sell it.

While it may be that Donnenberg would have sold the magazine had he not known the purchaser was a police officer, he is only charged with selling it and giving it away and the evidence is clear that he did not do either. For this reason, and without regard to the other contentions raised, we find that the trial court erred in not granting the motion for judgment of acquittal made on behalf of Donnenberg. We note also that the magazine is described in the indictment as “I.N.S. International Nudist Sun $2, American Edition” but that the publication introduced in evidence against him was I.N.S. In ⁵⁹⁷ ternational Nudist Sun f3, American Edition. In view of our ruling, however, we do not consider this.

The basic question raised on this appeal is whether the publications introduced in evidence were obscene and we shall now consider it. 1 Although the statute uses the words “lewd, obscene or indecent,” the trial court and this Court are bound by the definition of obscenity as enunciated by the Supreme Court of the United States. “States are free to adopt other definitions of obscenity only to the extent that those adopted stay within the bounds set by the constitutional criteria of the Roth definition, which restrict the regulation of the publication and sale of books to that traditionally and universally tolerated in our society.” Mishkin v. New York, 383 U. S. 502, 507-508 . Thus, while in common usage the words have different shades of meaning, we cannot distinguish “lewd” and “indecent” from “obscene” in our consideration of the statute and we take it that the Maryland Legislature intended by its use of these three words what the word “obscene” means in prevailing leading legal thought. Otherwise the words would be too vague to constitute a permissible standard in a criminal statute. Levin v. State, 1 Md. App. 139, 143 .

Roth v. United States and Alberts v. California, 354 U. S. 476 , holding that obscenity is not within the area of constitutionally protected speech or press, rejected the early leading standard of obscenity — judging obscenity by the effect of isolated passages upon the most susceptible persons — set forth in Regina v. Hicklin, [1868] L.R.3 Q.B.360. We understand the RotNATberts definition of obscenity — ⁵⁹⁸ “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest” — as reiterated in Jacobellis v. Ohio, 378 U. S. 184 , elaborated in Ginzburg v. United States, 383 U. S. 463 , adjusted in Mishkin v. New York, 383 U. S. 502 and summarized in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, (the Fanny Hill decision) 383 U. S. 413 establishes the following test for obscenity: Three elements must coalesce; it must be established that: 1) The dominant theme of the material taken as a whole appeals to a prurient interest in sex. a) where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. 2) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters. 3) The material is utterly without redeeming social value. Each of the above three federal constitutional criteria must be applied independently and neither be weighed against nor canceled by any of the others. a) As an aid to determining the question of obscenity, the setting in which the material was presented may be considered. Thus evidence of pandering- — “the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest — is relevant” and “where a purveyor’s sole emphasis is on the sexually provocative aspects of his publications, a court could accept his evaluation on its face value.” The Supreme Court of the United States has not determined whether the “community” involved in applying “contemporary community standards” is local or national or some other geo ⁵⁹⁹ graphical designation.

In Jacobellis v. Ohio, supra, there was a division of opinion, three justices indicating that it should be a local community, two justices indicating that it should be a national community and four justices remaining silent on the issue. The question has not been resolved by subequent decisions of that Court. Nor has the Court of Appeals of this State needed to resolve this “thorny issue.” Trans-Lux v. Md. Censor Board, 240 Md. 98, 105 ; Hewitt v. Bd. of Censors, 243 Md. 574, 594, note 8 ; Sanza v. Md. Board of Censors, 245 Md. 319, 332 . The general rule with respect to cases tried by the court sitting without a jury is that this Court has the right to review them on both the law and the evidence to determine whether in law the evidence was sufficient to sustain the conviction, though we may not set aside the verdict on the evidence unless it is clearly erroneous.

Maryland Rule, 1086; Levin v. State, supra. However, in Jacobellis v. Ohio, supra, the Court rejected the suggestion that the determination whether a book or other work of expression “is obscene can be treated as a purely factual judgment on which a jury’s verdict is all but conclusive, or that in any event the decision can be left essentially to state and lower federal courts, with (the Supreme) Court exercising only a limited review such as that needed to determine whether the ruling below is supported by ‘sufficient evidence.’ ” It said, page 190: “Hence we reaffirm the principle that in ‘obscenity’ cases as in all others involving rights derived from the First Amendment guarantees of free expression, this Court cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.” The Court of Appeals of this State and this Court have recognized the obligation to make an independent constitutional judgment on the facts of such cases. Sanza v. Md. Board of Censors, supra; Levin v. State, supra. But we are also' mindful that “we are judges, not literary experts or historians or philosophers,” Fanny Hill, supra, concurring opinion of Mr. Justice Douglas, at 383 U. S. 427 , and that neither the judge trying the case ⁶⁰⁰ in the lower court nor the judges of this Court would be qualified to determine whether material meets the requirements of the test of Roth-Alberts without enlightening testimony.

See Sanza v. Md. Board of Censors, supra, page 330. There is an exception with respect to material that is hard-core pornography. We noted in Levin v. State, supra, that hard-core pornography has been said to be material which “focuses predominately upon what is sexually morbid, grossly perverse, and bizarre without any artistic merit or scientific purpose or justification.” There is no desire to portray the material in pseudo-scientific or “arty” terms. It can be recognized by the insult it offers, invariably, to sex and to the human spirit.

It goes substantially beyond customary limits of candor and deviates from society’s standards of decency in the representation of the matters in which it deals. It has a patent absence of any redeeming social value; it speaks for itself and screams for all to hear that it is obscene. It is not designed to be a truthful description of the basic realities of life as the individual experiences them but its main purpose is to stimulate erotic response. Hewitt v. Bd. of Censors, supra.

No proof, other than the viewing of it, is required to determine if it is, in fact, obscene. But as to other than hard-core