Spencer, J.
Defendant appeals its conviction on four separate counts of selling obscene magazines. Defendant attacks the.statute for vagueness and overbreadth; and contends that the requisite element of scienter was not charged nor proven; that the publications are not obscene as a matter of law; and that the trial court erred by im[291]*291properly instructing the jury on the definition of obscenity and the standards by which obscene material is to be judged. We affirm.
On or about March 7 and 9, 1972, officers of the Omaha police department morals squad purchased four magazines which are the basis of the four counts herein. The magazines involved in the respective counts are: Count I, “Switch Hitters”; count II, “World of Love and Sex”; count III, “More than 7 Inches”; and count IV, “Odd Love”.
In the magazine in count I, with two exceptions, there is no actual contact with the genitals in the pictures. The magazine, however, is clearly' devoted to a lewd display of genitals in apparent preparation for various acts of sodomy. The written material is very descriptive of such acts.
The magazine in count II has photographs of nude men and women engaging in sexual intercourse, cunnilingus, fellatio, and masturbation. The written material, while not specifically descriptive of the photographs, is particularly lewd, vulgar, and obscene.
The magazine in count III consists entirely of pictures of young boys masturbating and committing various acts of sodomy. Some of the written material purports to give crude, lewd, and obscene quotations from 13-to 15-year-old boys.
The magazine in count IV is devoted to lesbianism. It portrays nude women depicting lesbian love scenes, with a majority of the pictures prominently displaying the genitals. The written material contains a description of an episode of sadomasochistic abuse.
Defendant’s first assignment of error attacks the statute on the grounds of vagueness and overbreadth. In State v. Jungclaus (1964), 176 Neb. 641, 126 N. W. 2d 858, we defined obscene material as that which deals with nudity, sex, or excretion in a manner appealing to prurient interest. We there said: “The proper standard for judging obscenity is whether to the average person, [292]*292applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.” We also defined “prurient interest” as being “such as excite lustful thoughts of a shameful or morbid interest in nudity, sex, or excretion which goes substantially beyond the customary limits of candor.”
The question of the constitutional validity of our obscenity statute is no longer in issue. It has been specifically construed to comply with Miller v. California (1973), 413 U. S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419. In State v. Little Art Corp. (1974), 191 Neb. 448, 215 N. W. 2d 853, we held: “The Nebraska obscenity statutes are in full compliance with the criteria and standards required by recent Supreme Court decisions including Miller v. California.”
Each of the four magazines are clearly embraced within the test delineated in Miller v. California, supra. The average person, applying contemporary community standards, would find each magazine taken separately appeals to the prurient interest. Each of them depicts or describes in a patently offensive way sexual conduct specifically covered by our state law, as authoritatively construed. A casual review of each of the magazines is sufficient to indicate that they were not intended to promote, and definitely lack, any serious literary, artistic, political, or scientific value. Actually, each magazine would meet the utterly “without redeeming social value” test of Memoirs if it were still applicable. Each of them is embraced within one of the two suggested standards enunciated in Miller. They either contain patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, or there is a patently offensive representation or description of masturbation, excretory functions, and lewd exhibition of genitals. If there is any serious literary, artistic, political, or scientific value in any of the four magazines, we are unable to find it. This, as we [293]*293understand it, is a minimum requirement to merit First Amendment protection.
Defendant further argues that the information did not charge and the State failed to prove the requisite element of scienter. Basically, defendant’s argument is that the State is required to set forth precisely the degree of guilty knowledge a defendant is required to defend against. Section 28-921, R. S. Supp., 1971, provided in part: “Whoever knowingly sells or offers for sale * * * or otherwise circulates * * * or causes to be circulated * * * or has in his possession with intent * * * to otherwise circulate * * * or cause to be circulated * * * any obscene, lewd, indecent, or lascivious book * * The court in its instructions told the jury that before it could find the defendant guilty it must find that the State had met its burden in showing that the defendant “did through its agents or through its employees willfully and knowingly sell, offer for sale, or to otherwise circulate or publish” obscene material.
The use of the term “knowingly” as showing the requisite element of scienter when accompanied by proper instructions has been approved by the United States Supreme Court in Hamling v. United States (1974), 418 U. S. 87, 94 S. Ct. 2887, 41 L. Ed. 2d 590: “We think the ‘knowingly’ language of 18 U. S. C. § 1461, and the instructions given by the District Court in this case satisfied the constitutional requirements of scienter. It is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributes, and that he knew the character and nature of the materials. To require proof of a defendant’s knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law. Such a formulation of the scienter requirement is required neither by the language of 18 U. S. C. § 1461 or by the Constitution.”
Here the defendant is a corporation, so the knowledge [294]*294must necessarily be that of its officers and employees. The police officers testified that the materials in question were enclosed in clear plastic covers and 'displayed on the shelves at defendant’s place of business. One could not page through the magazines but could see the covers. Anyone looking at the front and back covers of the four magazines in question, in light of the descriptive titles of the magazines, would readily infer that the contents of the magazines were obscene.
We said in State v. Jungclaus (1964), 176 Neb. 641, 126 N. W. 2d 858: “A seller of magazines and phonograph records is ordinarily presumed to know what he is offering for sale, although it is not universally so. The operator of a book store, for instance, would not be presumed to know of every isolated obscene statement in the hundreds of books that he had for sale.
Free access — add to your briefcase to read the full text and ask questions with AI
Spencer, J.
Defendant appeals its conviction on four separate counts of selling obscene magazines. Defendant attacks the.statute for vagueness and overbreadth; and contends that the requisite element of scienter was not charged nor proven; that the publications are not obscene as a matter of law; and that the trial court erred by im[291]*291properly instructing the jury on the definition of obscenity and the standards by which obscene material is to be judged. We affirm.
On or about March 7 and 9, 1972, officers of the Omaha police department morals squad purchased four magazines which are the basis of the four counts herein. The magazines involved in the respective counts are: Count I, “Switch Hitters”; count II, “World of Love and Sex”; count III, “More than 7 Inches”; and count IV, “Odd Love”.
In the magazine in count I, with two exceptions, there is no actual contact with the genitals in the pictures. The magazine, however, is clearly' devoted to a lewd display of genitals in apparent preparation for various acts of sodomy. The written material is very descriptive of such acts.
The magazine in count II has photographs of nude men and women engaging in sexual intercourse, cunnilingus, fellatio, and masturbation. The written material, while not specifically descriptive of the photographs, is particularly lewd, vulgar, and obscene.
The magazine in count III consists entirely of pictures of young boys masturbating and committing various acts of sodomy. Some of the written material purports to give crude, lewd, and obscene quotations from 13-to 15-year-old boys.
The magazine in count IV is devoted to lesbianism. It portrays nude women depicting lesbian love scenes, with a majority of the pictures prominently displaying the genitals. The written material contains a description of an episode of sadomasochistic abuse.
Defendant’s first assignment of error attacks the statute on the grounds of vagueness and overbreadth. In State v. Jungclaus (1964), 176 Neb. 641, 126 N. W. 2d 858, we defined obscene material as that which deals with nudity, sex, or excretion in a manner appealing to prurient interest. We there said: “The proper standard for judging obscenity is whether to the average person, [292]*292applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.” We also defined “prurient interest” as being “such as excite lustful thoughts of a shameful or morbid interest in nudity, sex, or excretion which goes substantially beyond the customary limits of candor.”
The question of the constitutional validity of our obscenity statute is no longer in issue. It has been specifically construed to comply with Miller v. California (1973), 413 U. S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419. In State v. Little Art Corp. (1974), 191 Neb. 448, 215 N. W. 2d 853, we held: “The Nebraska obscenity statutes are in full compliance with the criteria and standards required by recent Supreme Court decisions including Miller v. California.”
Each of the four magazines are clearly embraced within the test delineated in Miller v. California, supra. The average person, applying contemporary community standards, would find each magazine taken separately appeals to the prurient interest. Each of them depicts or describes in a patently offensive way sexual conduct specifically covered by our state law, as authoritatively construed. A casual review of each of the magazines is sufficient to indicate that they were not intended to promote, and definitely lack, any serious literary, artistic, political, or scientific value. Actually, each magazine would meet the utterly “without redeeming social value” test of Memoirs if it were still applicable. Each of them is embraced within one of the two suggested standards enunciated in Miller. They either contain patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated, or there is a patently offensive representation or description of masturbation, excretory functions, and lewd exhibition of genitals. If there is any serious literary, artistic, political, or scientific value in any of the four magazines, we are unable to find it. This, as we [293]*293understand it, is a minimum requirement to merit First Amendment protection.
Defendant further argues that the information did not charge and the State failed to prove the requisite element of scienter. Basically, defendant’s argument is that the State is required to set forth precisely the degree of guilty knowledge a defendant is required to defend against. Section 28-921, R. S. Supp., 1971, provided in part: “Whoever knowingly sells or offers for sale * * * or otherwise circulates * * * or causes to be circulated * * * or has in his possession with intent * * * to otherwise circulate * * * or cause to be circulated * * * any obscene, lewd, indecent, or lascivious book * * The court in its instructions told the jury that before it could find the defendant guilty it must find that the State had met its burden in showing that the defendant “did through its agents or through its employees willfully and knowingly sell, offer for sale, or to otherwise circulate or publish” obscene material.
The use of the term “knowingly” as showing the requisite element of scienter when accompanied by proper instructions has been approved by the United States Supreme Court in Hamling v. United States (1974), 418 U. S. 87, 94 S. Ct. 2887, 41 L. Ed. 2d 590: “We think the ‘knowingly’ language of 18 U. S. C. § 1461, and the instructions given by the District Court in this case satisfied the constitutional requirements of scienter. It is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributes, and that he knew the character and nature of the materials. To require proof of a defendant’s knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law. Such a formulation of the scienter requirement is required neither by the language of 18 U. S. C. § 1461 or by the Constitution.”
Here the defendant is a corporation, so the knowledge [294]*294must necessarily be that of its officers and employees. The police officers testified that the materials in question were enclosed in clear plastic covers and 'displayed on the shelves at defendant’s place of business. One could not page through the magazines but could see the covers. Anyone looking at the front and back covers of the four magazines in question, in light of the descriptive titles of the magazines, would readily infer that the contents of the magazines were obscene.
We said in State v. Jungclaus (1964), 176 Neb. 641, 126 N. W. 2d 858: “A seller of magazines and phonograph records is ordinarily presumed to know what he is offering for sale, although it is not universally so. The operator of a book store, for instance, would not be presumed to know of every isolated obscene statement in the hundreds of books that he had for sale. But in a situation, as here, where the covers of the magazines, front and back, are occupied with pictures of nude women in various poses, it can hardly be said that the jury could not infer knowledge of their contents by the defendant and an intent to sell obscene materials.” Though the standard for judging-obscene materials has altered somewhat since the ruling in Jungclaus, we feel that the inference with regard to the knowledge of the contents of the material found in the defendant’s possession, considering its nature, the manner of its display and sale, is still a proper one.
Defendant’s third assignment of error relates to its contention that the magazines in question are not obscene as a matter of law. We have sufficiently discussed this heretofore. Even a cursory examination of the exhibits involved will show that they are hard core pornography as repeatedly described by' the United States Supreme Court. They are obscene whether we use the Miller test or the Roth-Memoirs test. Applying the preMiller test, they are utterly without redeeming social value.
Defendant’s last assignment of error complains that [295]*295the trial court erred by improperly instructing the jury on the definition of obscenity and on the standards by which obscene material is to be judged. Defendant argues that because the conduct for which it was prosecuted took place before June 21, 1973, the date of the Miller decision, it is being subjected to an ex post facto law because there was a change in the law, as interpreted, between the date of the offense and the date of the trial. In Hamling v. United States (1974), 418 U. S. 87, 94 S. Ct. 2887, 41 L. Ed. 2d 590, the court specifically stated that Miller did not purport to make criminal conduct which had not previously been thought criminal, but had instead added a clarifying gloss to the prior construction' and made the meaning of the federal statute more definite. Obviously if the ex post facto argument has any validity, it would have been necessary at the time of Miller to vacate all nonfinal convictions and dismiss all pending actions. The failure of the Supreme Court to require this is a specific refutation of the ex post facto argument.
In Miller the court noted that if the state law regulating obscene material is construed to conform “the First Amendment values applicable to the states through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.” As suggested heretofore, it makes no difference whether the magazines herein are judged under the Roth-Memoirs standards or the Miller standards. Under either test the magazines are indeed obscene. As stated in Hamling, the definition of obscenity is not a question of fact, but one of law. The word “obscene” as used in the statute is not merely a generic or descriptive term but a legal term of art. The legal definition of obscenity does not change with each indictment. It is a term sufficiently definite in legal meaning to give a defendant notice of a charge against him.
The difficulty with defendant’s argument is that de[296]*296fendant specifically requested that the jury be instructed on Miller standards. In the conference on instructions, defendant’s counsel objected to some of the instructions because he contended that they contained a standard no longer applicable and because they did not conform to the definition of obscenity in Miller v. California, supra. It is clear that defendant not only chose but insisted upon being tried on the Miller standards and in having the jury so instructed. It is in no position to complain because the court followed its wishes. We have long held that error cannot be predicated on an instruction given at the request of the complaining party. Starkweather v. State (1958), 167 Neb. 477, 93 N. W. 2d 619.
The judgment of the District Court is affirmed.
Affirmed.