Heffernan, J.
The defendant’s initial objection was raised prior to the completion of the preliminary examination and is raised again on this appeal: That the complaint did not charge a crime because the complaint did not allege that the publications considered as a whole were obscene and that the complaint did not allege the element of scienter. The pertinent part of the amended complaint charged that the defendant:
“. . . did feloniously and intentionally sell and have in his possession for sale obscene or indecent pictures, to-wit: three (3) publications entitled ‘Affair,’ ‘Lasses [688]*688& Glasses’ and ‘Cocktails’, contrary to Section 944.21 (1) (a) of the Wisconsin Criminal Code.”
We are satisfied from a reading of the complaint that the allegation was that the magazines, when considered in their entirety, were obscene and was not merely that individual pictures printed therein were obscene.
Scienter is, of course, a necessary element bf the crime of sale or possession for sale of obscene materials, and it must be alleged in the criminal complaint. Smith v. California (1959), 861 U. S. 147, 80 Sup. Ct. 215, 4 L. Ed. 2d 205, and State v. Chobot (1960), 12 Wis. 2d 110, 106 N. W. 2d 286. Scienter was sufficiently alleged. Scienter is the knowledge or awareness of the nature of the materials alleged to be obscene.
Sec. 939.23 (3), Stats., defines the word, “intentionally.” As so defined, it means that a defendant “. . . must have knowledge of those facts which are necessary to make his conduct criminal . . . .” The phrase, “feloni-ously and intentionally,” used in the complaint, under the statutory definition, constitutes a sufficient allegation of an element of scienter. The complaint was not insufficient.
Additionally, the defendant contends that he ought not to have been bound over to circuit court for trial, since the evidence was insufficient to prove probable cause. We disagree. While it could be argued that the evidence adduced at the preliminary examination was insufficient to prove the charges against the defendant beyond a reasonable doubt, this burden of proof is not imposed upon the state in a preliminary examination. State ex rel. Marackowsky v. Kerl (1951), 258 Wis. 309, 45 N. W. 2d 668. A defendant may be bound over for trial to a court of general jurisdiction when from the evidence presented at a preliminary hearing it appears probable that a crime has been committed and that the defendant has probably committed it. State ex rel. Woj-[689]*689tycski v. Hanley (1945), 248 Wis. 108, 20 N. W. 2d 719, sec. 954.18 (1), Stats. 1967. We are satisfied that the evidence adduced at the preliminary examination met the standards required to prove probable cause.
There was testimony that the three magazines in question were purchased from “The Book Seller,” which the defendant owned and operated. They were stapled shut and were placed on display in a section of the store designated, “You must be 21 to purchase.” These facts give rise to the reasonable inference that the defendant was aware of the contents of the books, and the evidence was sufficient for the magistrate to have found that there was probable cause to determine that the defendant was aware of the contents of these particular magazines as required by Smith v. California, supra.
The defendant also argues that probable cause was not proved in the preliminary examination, because the state failed to produce sufficient evidence that the publications violated community standards of candor. We are satisfied that a perusal of the three magazines was sufficient for the committing magistrate to arrive at the inference that the materials were obscene and not in conformity with community standards. The defendant was properly bound over for trial.
The defendant also contends that this court, as a matter of law, should conclude that the magazines in question are not obscene. The defendant relies upon descriptions of the contents of publications not found to be obscene by various courts throughout the United States and therefore argues that since those publications, which defendant contends are more offensive than the ones before this court, have not been held to be obscene, that this court should, as a matter of law, reach the same conclusion in the instant case. We consider this yardstick inappropriate for precedential purposes for the same reason that we refuse to rely on damages awarded in [690]*690one case as a standard to be used in a subsequent case. The subjective nature of the material as well as the subjective conduct of the respective defendants requires an individual analysis in each case. We do not believe that courts, by finding particular materials obscene or not obscene, have set the guidelines for a subjective determination that other materials are obscene. The most that can be gleaned from these prior cases is that courts have attempted to set legal standards of an objective nature which must be applied in each case. The verbalization of the nature of an alleged piece of obscenity or the mode of describing a piece of obscenity is, like beauty, the product of the eye of the beholder. We are satisfied that any description of the magazines that are the subject of this litigation would merely reflect the predilections and the anathemas of the judge writing this opinion and would be no more accurate than the descriptions that are contained in the cases upon which the defendant relies. We refuse to use the subjective description of obscenity in prior cases as an objective standard to determine whether the items before us are obscene. The reader of this opinion would have a true appraisal even of the nature of these magazines only if we were to publish them in extenso as an appendix to our reports. This we obviously refuse to do. We quote the defendant’s brief for a description of the magazines involved in this appeal:
“The publications in question in the instant case disclose nude female models during some occasions engaged in horse play with other female or male models. The breasts are freely revealed and in many instances, pubic hair can be seen. In all but a few photographs, however, the female genitalia is not prominently displayed or the focal point of the picture. The male genitalia are not generally exposed although the male models are nude or seminude.”
We will supplement this description only by pointing out that, in addition to the pictures described by the [691]*691defendant, the magazines contain short articles of fiction in which the emphasis is upon violence and death and a series of incidents involving unconventional sexual relations under threat of death and culminating in the shooting and killing of the unwilling sex partner. They recount episodes of sexual abuse and murder. It is apparently these articles that the defendant asks that we consider, in addition to the photographs, to show the overall redeeming social value of these magazines.
We are satisfied that, in applying what we understand to be the applicable standards, this court cannot say, as a matter of law, the magazines are not obscene.
In Roth v. United States (1957), 354 U. S. 476, 77 Sup. Ct. 1304, 1 L. Ed. 2d 1498, the United States Supreme Court held that obscenity did not fall within the first amendment protection of freedom of speech and press. The obscenity test of Roth was capsulized in a plurality opinion written by Mr. Justice Brennan in Memoirs v. Massachusetts (1966), 383 U. S. 413, 418, 86 Sup. Ct. 975, 16 L. Ed. 2d 1. Three elements were there held to be essential to find material obscene and therefore not within the ambit of first amendment protections. The three elements there stated were:
“(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 to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.”
The Roth Case, supra, page 484, clearly stated obscenity was excluded from first amendment protections because it is “utterly without redeeming social importance” and not within the ambit of the constitutional provisions “fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” In Jacobellis v. Ohio (1964), 378 U. S. 184, 191, 84 Sup. Ct. 1676, 12 L. Ed. [692]*6922d 793, the Roth test was apparently altered in that Mr. Justice BRENNAN’S opinion states the converse of the Roth test, i.e., that a matter is not obscene unless it is “ ‘utterly’ without social importance.”
This court in State v. Chobot, supra, interpreted the Wisconsin statute as calling for the application of the Roth test. The Roth test has also been cited with approval by this court in McCauley v. Tropic of Cancer (1963), 20 Wis. 2d 134, 121 N. W. 2d 545, State v. Voshart (1968), 39 Wis. 2d 419, 159 N. W. 2d 1, and State v. Amato (1971), 49 Wis. 2d 638, 183 N. W. 2d 29. We accept the Roth test of obscenity; and, under that test, we cannot say, as a matter of law, the materials are not obscene.
The defendant also argues that, since other court decisions have held materials not to be obscene when those materials evince greater “candor” than the instant case, those cases have established a national standard as a matter of law, and that, after examining the descriptions contained in those cases, we must conclude that the instant materials are not violative of a national standard. As stated above, we doubt that the descriptions of alleged pornography contained in law reports can adequately describe the nature of the materials, and we refuse to conclude that those cases are declarative of a national standard. We are satisfied that an individual determination must be made by the finder of the facts— a judge or a jury — bearing in mind the constitutionally approved guidelines of Roth. The mere fact that the Roth test states that the standards are to be “contemporary” is indicative that the United States Supreme Court did not intend that there be an ossification of mores or that decisions of the past should bind the present or contemporary scene. Moreover, the word, “community,” is susceptible to varying interpretations. This court in Chobot, supra, and Tropic of Cancer, supra, has declined to approve the standards of a national community as has [693]*693been suggested in Jacobellis, supra. In State v. Kois, ante, p. 668, 188 N. W. 2d 467, of even date herewith we have again stated that “ [w] e use the contemporary community standards prevalent in the state of Wisconsin,” and express our doubts that there is an ascertainable national standard. We reject, therefore, the defendant’s conclusion that what has been found to be acceptable in other states using other community standards is declarative of the standard to be applied in this jurisdiction even if we were able to determine the exact nature of the material from the descriptions that appear in opinions. It should be pointed out, however, that the trial judge in the instant case referred to a national standard in submitting his instructions to the jury. While we find such instruction inappropriate, the defendant has shown no evidence that he was prejudiced as a consequence of that instruction.
The defendant also relies upon Stanley v. Georgia (1969), 394 U. S. 557, 89 Sup. Ct. 1243, 22 L. Ed. 2d 542, for the proposition that obscenity is in some instances to be free of governmental control and that, if there is the right to possess obscene material, there must be the right to sell it. Stanley, of course, is inapplicable to this fact situation, and it is also clear that the Stanley decision did not impinge upon the standards of Roth. If any lingering doubts remained, and there should have been none, they were dispelled in United States v. Reidel (May 3, 1971), 402 U. S. 351, 91 Sup. Ct. 1410, 28 L. Ed. 2d 813, which pointed out that the Stanley Case, which held that the state had no power to regulate or prohibit the mere possession of obscenity by an individual in the privacy of his own home, did not disturb the holdings of Roth. We are satisfied that we cannot state, as a matter of law, that the magazines were not obscene. This case presented a factual question to be resolved by the finder of fact under proper constitutional standards.
[694]*694The question of obscenity vel non is a factual matter to be resolved by the trier of fact under the constitutional guidelines of Roth. In Chobot we adopted the “finding-not-against-the-evidence approach” as the applicable standard of review. In McCauley v. Tropic of Cancer, supra, page 148, we retreated from the Chobot standard of review and stated:
“. . . we deem the reading of the book to constitute the most weighty factor in the determination, and do not consider ourselves bound by the decision of the trial court, based on his reading of it.”
This statement in McCauley was made after a discussion of various authorities which pointed out the “undesirability of a formula which puts the decision of one jury or one judge upon a difficult constitutional issue beyond the reach of reconsideration.” McCauley, page 148.
On the other hand, McCauley v. Tropic of Cancer was not a criminal case but was an in rem proceeding for declaratory judgment that the book, Tropic of Cancer, was obscene. It could be argued that the method of review adopted in McCauley was, therefore, intended to be applicable only to the type of situation where the totality of the evidence was really the publication itself and where the appraisal of the obscenity question was wholly a matter of verbal interpretation, a field in which an appellate court professes definitive expertise.
However, in State v. Voshart, supra, page 427, footnote 14, we alluded to the standard of review appearing in the dissent of Mr. Justice Harlan in Roth v. United States. Mr. Justice Harlan’s views were quoted with the apparent approval of this court:
“ T do not think that reviewing courts can escape this responsibility by saying that the trier of the facts, be it a jury or a judge, has labeled the questioned matter as “obscene,” for, if “obscenity” is to be suppressed, the [695]*695question whether a particular work is of that character involves not really an issue of fact but a question of constitutional judgment of the most sensitive and delicate kind.’ J. Harlan, dissenting, Roth v. United States, id. at page 497.”
Thus, we have apparently followed the HARLAN interpretation of the standard of appellate review, a standard which has been more recently and more fully stated by Mr. Justice Brennan in Jacobellis, supra. Therein, Mr. Justice Brennan, in an opinion in which Mr. Justice Goldberg joined, discussed whether the question of obscenity was purely factual and therefore should be left to a jury as a trier of fact. He concluded that, “whether a particular work is obscene necessarily implicates an issue of constitutional law,” and stated that the issue of obscenity must ultimately be decided by “this Court.” Jacobellis, supra, page 188. While we have made no pronouncement on this question since the McCauley v. Tropic of Cancer Case, except by way of dicta, it appears clear that we have followed the reasoning of Mr. Justice Harlan in the Roth dissent and the reasoning of Mr. Justice Brennan in Jacobellis.
The viewpoint expressed in the plurality opinion authored by Mr. Justice Brennan has, however, not been without its critics, and it is difficult to determine whether that pronouncement is a constitutional mandate which leaves no latitude to the states in determining the fact-finding process by which an obscenity question is resolved. While Mr. Justice Harlan’S dissent to Jacobellis makes it clear that he agrees with the statement of the reviewing responsibility of the United States Supreme Court, it is not clear that he would impose the same standards of constitutional fact finding upon a state appellate court. He states:
“The more I see of these obscenity cases the more convinced I become that in permitting the States wide, but not federally unrestricted, scope in this field, while hold[696]*696ing the Federal Government with a tight rein, lies the best promise for achieving a sensible accommodation between the public interest sought to be served by obscenity laws .... and protection of genuine rights of free expression.” (pp. 203, 204)
In the same case Mr. Chief Justice WARREN and Mr. Justice Clark, dissenting, accept the rule of the Roth Case, stating, however, that on review the question is simply:
“. . . a consideration only of whether there is sufficient evidence in the record upon which a finding of obscenity could be made. If there is no evidence in the record upon which such a finding could be made, obviously the material involved cannot be held obscene. . . . But since a mere modicum of evidence may satisfy a ‘no evidence’ standard, I am unwilling to give the important constitutional right of free expression such limited protection. However, protection of society’s right to maintain its moral fiber and the effective administration of justice require that this Court not establish itself as an ultimate censor, in each case reading the entire record, viewing the accused material, and making an independent de novo judgment on the question of obscenity. Therefore, once a finding of obscenity has been made below under a proper application of the Roth test, I would apply a ‘sufficient evidence’ standard of review — requiring something more than merely any evidence but something less than ‘substantial evidence on the record [including the allegedly obscene material] as a whole.’ Cf. Universal Camera Corp. v. Labor Board, 340 U. S. 474.” Jacobellis, supra, pages 202, 203.
We note also the dissent of Mr. Chief Judge Lumbard in United States v. A Motion Picture Film (2d Cir. 1968), 404 Fed. 2d 196, 203, 204, wherein he stated:
“But the majority would take away from the jury the power to pass on these not too difficult and complicated questions by saying that obscenity is ‘an issue of constitutional law’ rather than an issue of fact with respect [697]*697to which the jury’s finding has its usual conclusive effect. To me this simply means that juries are not to be trusted where a majority of the judges disagree with them.
“The action of the majority in nullifying the findings of the jury here goes beyond any case thus far decided in the obscenity area. No case is cited and I can find no case where the Supreme Court has set aside the verdict of a jury which has, under proper instructions, found present the three elements of obscenity as established by Roth v. United States, 354 U. S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957) and Jacobellis v. Ohio, 378 U. S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793 (1964). There is no reason to suspect that judges are in any better position to pass judgment on these matters than are jurors. Compare Mr. Justice Brennan’s remarks in Kingsley Books, Inc. v. Brown, 354 U. S. 436, 448, 77 S. Ct. 1325, 1331, 1 L. Ed. 2d 1469 (dissenting opinion) :
“ ‘The jury represents a cross-section of the community and has a special aptitude for reflecting the view of the average person. Jury trial of obscenity therefore provides a peculiarly competent application of the standard for judging obscenity which, by its definition, calls for an appraisal of material according to the average person’s application of contemporary community standards.’
“With due deference to the very considerable intellectual attainments of my colleagues, I submit that when it comes to a question of what goes beyond the permissible in arousing prurient interest in sex, the verdict of a jury of twelve men and women is a far better and more accurate reflection of community standards and social value. The jurors are drawn from all walks of life and their less pretentious positions in the community qualify them to answer the questions put to them by Judge Murphy at least as well as circuit judges in their middle sixties who cerebrate in the ivory towers of the judiciary.”
We agree with Mr. Chief Judge Lumbard’s dissent and adopt the principle which he espoused. The determination of obscenity is a factual matter to be resolved by a finder of fact following constitutional guidelines, sub[698]*698ject to review by an appellate court which seeks to determine merely whether the evidence underpinning the verdict was sufficient in view of the record as a whole.
We are fully aware of the possible consequences of leaving the cherished freedoms preserved by the first amendment in the hands of a jury which, may on occasions be improperly swayed by considerations foreign to our concepts of American liberty. On the other hand, it is difficult to conclude that the political and artistic freedoms are even minimally threatened by leaving the initial fact determination to our venerated jury system. True, there is always the possibility that great works of art or literature may be momentarily suppressed by the overzealous. We will always have with us a fringe of our society that would conclude that the “Song of Solomon” or the “Canterbury Tales” is obscene.
We should point out, however, that it has been the experience of this court that it is rare indeed that the first amendment liberty of free speech is jeopardized in an obscenity prosecution (unless we adopt the position of Mr. Justice Black and Mr. Justice Douglas that all forms of expression are equally and absolutely entitled to first amendment protections). That this has also been the experience in the United States Supreme Court is evidenced by the statement of Mr. Justice Harlan concurring in Ginsberg v. New York (1968), 890 U. S. 629, 707, 88 Sup. Ct. 1274, 20 L. Ed. 2d 195, and dissenting in Interstate Circuit, Inc. v. Dallas (1968), 390 U. S. 676, 707, 88 Sup. Ct. 1298, 20 L. Ed. 2d 225, wherein he said, “In all except rare instances, I venture to say, no substantial free-speech interest is at stake, given the right of the States to control obscenity.” We conclude that the free-speech interest will be protected by the courts of this state when juries are strictly enjoined to follow the constitutional standards of Roth in making the initial determination of obscenity and when such findings are sustained on appeal only when there is [699]*699substantial evidence, in view of the record as a whole, to reach that conclusion. See R. T. Madden, Inc. v. ILHR Department (1969), 43 Wis. 2d 528, 169 N. W. 2d 73, Mr. Justice Robert W. Hansen’s concurring opinion, for a recent discussion of that standard of review. See also: sec. 227.20 (1) (d), Stats.
Where the matter has been tried before a judge, the record should show that there has been full adherence to the Roth standards and that the findings made are supported by substantial evidence in view of the record as a whole. While this court has confidence in its ability to review jury verdicts to insure that obscenity has been constitutionally found, it is apparent that the standards upon which the jury bases its verdict must be in strict conformance with approved constitutional guidelines, and proper instructions are mandatory. If we are to rely upon the jury’s verdict in this case, we must conclude that the instructions to the jury were proper and the verdict was based upon sufficient evidence. Defendant attacks the instructions to the jury on several grounds.
An instruction requested by defendant was:
“. . . to find the defendant guilty of the offense charged, you must find that the defendant knew the nature of the material and knew that the material was obscene.”
The court rejected this instruction and advised the jury:
“Before the defendant may be found guilty of selling or having in possession for sale any obscene material the state must prove, by evidence which satisfies you beyond all reasonable doubt, that the defendant intentionally sold or had in his possession for sale obscene magazines . . . .”
Defendant argues that the instruction as given permits a finding without any evidence that the defendant was aware of the nature of the materials and that the [700]*700jury could return a finding if satisfied that the defendant sold or possessed material which was obscene.
We pointed out in discussing the preliminary hearing that scienter is a necessary element to every conviction for the sale of obscene material or the possession of such material for the purpose of sale. In Mishkin v. New York (1966), 383 U. S. 502, 511, 86 Sup. Ct. 958, 16 L. Ed. 2d 56, the United States Supreme Court said:
“The constitution requires proof of scienter to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity.”
The supreme court held that it was necessary that the defendant be aware of the nature of the material. Similarly, this court has recognized the necessity of the element of awareness in State v. Chobot, supra. The majority of this court concludes that the interpretation that a reasonable jury would place upon this instruction would be that the word, “intentionally,” as used therein carries with it the connotation that the defendant be required to have knowledge of those facts necessary to make his conduct criminal. Such interpretation is reasonable, particularly where, as here, there is substantial evidence that the defendant by placing the books in an “adults only” section and stapling the covers evinced knowledge of the nature of the contents.
The writer of this opinion, however, believes that the instruction was defective, although, under the facts, constituting harmless error. The word, “intentionally,” as used in the Wisconsin Criminal Code, is defined in the statutes. Sec. 939.23 (3), Stats. It would appear that a jury should not be expected to guess at the meaning of the words in the judge’s instructions and at least be given the benefit of the statutory definition. Since we hold in this case that a jury’s verdict if supported by sufficient evidence should be conclusive, it should be [701]*701mandatory that the instructions be free of error, and that we should not tolerate questionable instructions.
The defendant’s requested instruction was erroneous. The state is not required to show that defendant knew the material was obscene. Defendant need only know the nature of the materials. State v. Smith (Mo. Sup. Ct., 1967), 422 S. W. 2d 50, certiorari denied, 393 U. S. 895, 89 Sup. Ct. 150, 21 L. Ed. 2d 176; People v. Williamson (1962), 207 Cal. App. 2d 839, 24 Cal. Rptr. 734. The trial judge properly refused the instruction as offered by the defendant.
Defendant also claims that obscenity was improperly defined. The trial judge instructed:
“Obscenity has also been defined as signifying that form of a morality which has relation to sexual impurity and which has a tendency to excite lustful thoughts; and, also, has been defined as material which has a substantial tendency to deprave or corrupt its readers or viewers by inciting lascivious thoughts or arousing lustful desires.”
The defendant takes the position that this part of the charge improperly created the impression that the standards set forth in Roth were not exclusively the ones upon which the jury could reach its decision and that the jury was therefore entitled to supplement the instruction with its own view of the constitutional standards. We do not agree.
The first portion of the quoted section of the instructions is substantially a verbatim recital of the definition of obscenity approved in Roth. The second part is a repetition of the trial court definition of obscenity approved in Roth’s companion case, Alberts v. California (1957), 354 U. S. 476, 77 Sup. Ct. 1304, 1 L. Ed. 2d 1498. Although this particular sentence, taken out of context from the instructions, did not fully encompass all of the elements of the Roth test, they are set forth explicity elsewhere in the instructions, and the jury [702]*702could not have been misled or the defendant prejudiced by the fact that the single sentence referred to did not encompass all of the elements.
The defendant also argues that the trial judge misapplied the Roth test because he stated:
“Material that describes or represents sex in various forms is not obscene if its social or literary values or importance outweighs the prurient or the offensive aspects of it. If the quality of the material has a significant and overbearing social or literary value it may not be found to be obscene merely because it offends community standards or appeals to prurient interests.”
Defendant argues that this invites the jury to indulge in a weighing or balancing procedure prohibited by Roth and Memoirs. In Memoirs, supra, pages 419, 420, Mr. Justice Brennan, speaking for the plurality of the court, stated:
“The Supreme Judicial Court erred in holding that a book need not be ‘unqualifiedly worthless before it can be deemed obscene.’ A book cannot be proscribed unless it is found to be utterly without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive. Each of the three federal constitutional criteria is to be applied independently; the social value of the book can neither be weighed against nor canceled by its prurient appeal or patent offensiveness. Hence, even on the view of the court below that Memoirs possessed only a modicum of social value, its judgment must be reversed as being founded on an erroneous interpretation of a federal constitutional standard.”
It should be pointed out that even that statement carries with it a balancing element. The supreme court, though criticizing the Massachusetts court, did not hold that a material must be utterly without value to be found obscene. It qualified the type of value the material must have to be saved. The value must be social, and it must be redeeming. These are words that carry the implicit [703]*703connotation of a fact finder’s value judgment. They are words that suggest a balancing of interests. The writer of this opinion admits, however, that he does not understand what the United States Supreme Court means, particularly in view of the transposition of the Roth conclusion (obscenity is not protected by the constitution because it has no value) to the Memoir conclusion (it is not obscenity if it has any value). Suffice it to say that the trial judge’s instructions attempted a sensible analysis based on the Roth standards. We believe he succeeded.
Moreover, we are satisfied that the instructions taken as a whole make it clear that the jury was to be bound by the Roth test as stated in the plurality opinion of Memoirs, supra, page 418. In defining obscenity, Judge Parnell stated, “. . . the material must be utterly without redeeming social value.” We conclude that the jury was properly instructed in this respect.
Defendant also complains that the instructions were in error in that the jury was misled into believing that the standard to be applied was focused upon the possible effects of the literature upon minors rather than upon the average person. We do not agree. The trial judge stated that, in judging the effect upon the average citizen, the jury was to consider “the community as a whole”:
“. . . the men and women, young and old, the educated, the uneducated, the religious and the irreligious, and in the light of all the differences of age, culture, philosophy or attitudes that exist between them and which may affect or motivate them . . . .”
He went on to state:
“In this case you are not to consider the effects, if any, the material might have on children because the statute is not specifically directed to the protection of children.”
During the course of the jury’s deliberations a request was made for further instructions as to whether, “we [704]*704should consider minors involved at all in this case in general.” The trial judge answered by an almost verbatim repetition of the first portion of the above instructions and concluded by saying that the statute was not directed to keep the material from children and that the jury was to be concerned with a fair cross section of the common, average person. We are satisfied that the trial judge did not prejudicially misstate the law. The jury was instructed in accordance with proper constitutional standards.
Additionally, defendant claims that the evidence was insufficient to support the verdict. Knowledge of the contents of the three magazines was denied by the defendant. The state relied on circumstantial evidence to prove the requisite awareness of the contents of the magazines. The defendant admitted personally selling the three magazines. He admitted that the magazines were marked with identification numbers before being put on the shelves, either by himself or by his clerk. He admitted that the magazines had been placed in a section of the store marked, “You must be 21 to purchase,” and that because of the nature of the magazines they were stapled shut to prevent their casual perusal. Each of the magazines carried the notation, “Adults only.” The evidence herein could lead to varying factual inferences — either that the defendant was aware of the contents of the magazines or that he was unaware, but in the exercise of prudence had used these procedures to segregate the literature. This presents a typical fact question that must be resolved by the trier of fact. Implicit in the jury’s verdict is the question of the credibility to be afforded to the defendant’s statement that he was unaware of the contents. We are satisfied that there was sufficient evidence to support the jury’s finding in this respect.
The defendant also argues that there was no evidence to show that the three magazines offended contemporary [705]*705community standards of candor. The only evidence presented was that of a sociologist, who stated that magazines comparable to the three in question were available in communities across the country. His testimony did not reach the question of whether mere availability was determinative of conformance with community standards. In Amato, supra, page 645, we pointed out that the introduction of the publications and their presentation to a jury was sufficient evidence upon which the jury could reach a conclusion in respect to conformity with community standards. The rationale of that holding was also stated in State v. Childs (1968), 252 Or. 91, 104, 447 Pac. 2d 304, wherein the Oregon Supreme Court stated:
“The time has long passed when a juror’s experience was limited to the happenings and attitudes of his local community. The average juror is constantly in touch with the national scene, exposed to national publications, movies, television and radio. ... To say that the average juror is not cognizant of the contemporary national community and what it will tolerate is to deny the present mass dissemination of information.”
In addition, a professor of English at Lawrence University, after a five-element analytical evaluation of the magazines, testified that none of them had any literary or social value. He declined, however, to express an opinion concerning the artistic value of the pictures that appeared in the magazines.
We are satisfied that the evidence was sufficient for a jury to find that the magazines were utterly without redeeming social value. We conclude that the jury’s verdict was supported by substantial evidence in view of the entire record as submitted. In so doing we have not confined our review merely to the errors alleged by the defendant on this appeal but have examined the magazines themselves and the record as a whole and [706]*706have determined that all of the elements required by the Roth test have been satisfied.
The defendant also claims that the trial court abused its discretion by denying a motion for a change of venue. The motion was timely made and was supported by extensive affidavits which purported to show that attempts had been made by a local service club to influence the initiation of the instant prosecution. Included was a draft of a proposed Appleton city ordinance which was critical of the courts and the granting of continuances in pornography cases. The proposed ordinance stated such judicial conduct permitted “perversion for profit.” The defendant testified that risque magazines had been surreptitiously placed among his stock, apparently for the purpose of “fixing” a case against him, and that, while he was attempting door-to-door sales of light bulbs to raise money for charitable purposes, doors were slammed in his face by people who refused to buy from him, because of his notoriety in the community in regard to the operation of his bookstore. Also included were a number of clippings, mostly from local papers, which presented varying points of view in regard to problems of obscenity law enforcement.
A motion for change of venue is directed to the discretion of the trial court, and the trial court’s decision will not be interfered with unless an abuse is demonstrated. State v. Clarke (1970), 49 Wis. 2d 161, 181 N. W. 2d 355; State v. Kramer (1969), 45 Wis. 2d 20, 171 N. W. 2d 919; and State v. Laabs (1968), 40 Wis. 2d 162, 161 N. W. 2d 249. In the past, we have relied extensively on the judgment of the trial judge, whose daily familiarity with the sentiment of the community gives him a broader base for his decision than the printed record before us on appeal. We have pointed out, however, that there should not be undue deference to the trial judge’s decision. State v. Clarke, supra; Ameri[707]*707can Bar Association Project on Minimum Standards for Criminal Justice, Relating to Fair Trial and Free Press, Approved draft, pages 120-128. In State v. Kramer, supra, page 80, we stated the test on review of the trial court’s exercise of discretion:
“If the evidence elicited, properly considered, gives rise to the reasonable likelihood that a fair trial cannot be had, it is an abuse of discretion to fail to grant a change of venue.”
While the evidence in the instant case compels the conclusion that there was some prejudice in segments of the community against persons accused of selling obscene literature, the evidence does not warrant a reversal of the trial court’s determination that the community was not so infected with prejudice as to give rise to the reasonable likelihood that a fair trial could not be had. It was not an abuse of discretion to deny defendant’s motion.
The defendant also claims that he should have been permitted to waive trial by jury. The defendant made a timely motion to waive a jury trial and have the case tried to the court. The district attorney, however, refused to consent to the waiver.
Sec. 957.01 (1), Stats. 1967, permits a defendant to waive his right to a jury trial by statement in open court or in writing, provided the trial court approves and the district attorney consents. Defendant asks us to discard the requirement of the district attorney’s consent in obscenity cases because of the complexity of the issues. It is sufficient to say that the requirement is a legislative enactment, which is consistent with the federal constitutional requirement. Patton v. United States (1930), 281 U. S. 276, 50 Sup. Ct. 253, 74 L. Ed. 854; State ex rel. Sauk County District Attorney v. Gollmar (1966), 32 Wis. 2d 406, 145 N. W. 2d 670. A jury trial cannot be waived without the consent of government counsel.
[708]*708We conclude that the case was submitted to the jury on proper constitutional standards and that the evidence of record, when the record is considered as a whole, is sufficient for this court to sustain the jury’s verdict that the defendant was guilty beyond a reasonable doubt.
By the Court. — Judgment affirmed.