State v. Hoyt

174 N.W.2d 700, 286 Minn. 92, 1970 Minn. LEXIS 1193

• Court: Supreme Court of Minnesota
• Decided: February 6, 1970
• Docket: 41177, 41436
• Status: Published

Opinions

Murphy, justice.

These appeals arise out of convictions for the sale of obscene books by clerks employed at 480 Wabasha Street in the city of St. Paul. Because the principal issues are identical, the cases have been consolidated for oral argument and disposition by this court.

Defendant Melvin Hoyt was charged with having sold three obscene books on August 31, 1967, The Way of a Man with a Maid, Adam and Eve, and Business as Usual. Defendant Joseph Lee was charged with having sold two obscene books on January 8, 1968, Lady Susan’s Cruel Lover and True Love Stories of Growing Up. The complaints allege that the sales were in violation of Minn. St. 617.241.

Defendants were tried separately by the municipal court of the city of St. Paul without a jury and each was convicted, defendant Hoyt on November 21, 1967, and defendant Lee on May 15, 1968. Each was fined $100, the maximum penalty permitted for a misdemeanor.¹

The issues raised in the two appeals are (1) whether the state has the burden of proving by qualified witnesses the elements of obscenity specified in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U. S. 413, 86 S. Ct. 975, 16 L. ed. (2d) 1; (2) whether it was error to exclude other books offered by defendant Lee to establish contemporary community standards; and (3) whether as a matter of law under the tests established by Redrup v. New York, 386 U. S. 767, 87 S. Ct. 1414, 18 L. ed. (2d) 515, and subsequent decisions of the United States Supreme Court citing that case, the First Amendment of the United States Constitution requires a reversal.

Section 617.241 under which defendants were convicted was adopted in 1961 and provides as follows:

“It is unlawful for any person knowingly to exhibit, sell, print, offer to sell, give away, circulate, publish, distribute, or attempt to distribute any obscene book, magazine, pamphlet, paper, writing, card, advertisement, circular, print, picture, photograph, motion picture film, play, image, instrument, statue, drawing, or other article which is obscene. ‘Obscene’ for the purpose of this section, is defined as follows: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests.

“Any person violating any provision of this section shall be fined not less than $20 nor more than $100 for each offense.”

It may be assumed that this, statute was drafted to embody the rules enunciated by the United States Supreme Court in Roth v. United States, 354 U. S. 476, 77 S. Ct. 1304, 1 L. ed. (2d) 1498, where it was held that obscenity is not within the area of constitutionally protected speech or free press and defines it as follows (354 U. S. 489, 77 S. Ct. 1311, 1 L. ed. [2d] 1509):

“* * * [W] hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”

From an examination of the material which is the subject of these prosecutions, we conclude that the convictions should be affirmed. In light of the case law,² the dominant theme of the material appeals to the prurient interest of the average person and, applying contemporary community standards, is patently offensive and utterly without redeeming social importance. It is not entitled to First Amendment Protection under any rule or standard.

It is unnecessary to discuss the details of these books further than to observe that the theme of each is pointless save as it serves to relate the characters to repeated accounts of lewd and degrading episodes. They deal with filth for the sake of filth.

In answer to the appellants’ assertion that the convictions are unsupported by evidence bearing upon the social value of the books and their acceptance by community standards, we can only say that such evidence would add nothing. The material speaks for itself. If it is not obscene, the word has lost all meaning. We identify it for what it is and hold that it is obscene as a matter of law.

Affirmed.

1 In each instance the trial court treated the multiple sales as a single offense pursuant to Minn. St. 609.035.

2 See, State v. Oman, 261 Minn. 10, 110 N. W. (2d) 514; Rosen v. United States, 161 U. S. 29, 16 S. Ct. 434, 40 L. ed. 606; Roth v. United States, 354 U. S. 476, 77 S. Ct. 1304, 1 L. ed. (2d) 1498; Kingsley Books Inc. v. Brown, 354 U. S. 436, 77 S. Ct. 1325, 1 L. ed. (2d) 1469; Smith v. California, 361 U. S. 147, 80 S. Ct. 215, 4 L. ed. (2d) 205; Manual Enterprises, Inc. v. Day, 370 U. S. 478, 82 S. Ct. 1432, 8 L. ed. (2d) 639; Jacobellis v. Ohio, 378 U. S. 184, 84 S. Ct. 1676, 12 L. ed. (2d) 793; A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General, 383 U. S. 413, 86 S. Ct. 975, 16 L. ed. (2d) 1; Ginzburg v. United States, 383 U. S. 463, 86 S. Ct. 942, 16 L. ed. (2d) 31; Redrup v. New York, 386 U. S. 767, 87 S. Ct. 1414, 18 L. ed. (2d) 515; Kahm v. United States (5 Cir.) 300 F. (2d) 78; Klaw v. Schaffer (2 Cir.) 251 F. (2d) 615, affirming Id. (S. D. N. Y.) 151 F. Supp. 534; Parmelee v. United States, 72 App. D. C. 203, 113 F. (2d) 729; United States v. Levine (2 Cir.) 83 F. (2d) 156; United States v. One Book Called “Ulysses” (2 Cir.) 72 F. (2d) 705, affirming Id. (S. D. N. Y.) 5 F. Supp. 182; United States v. Dennett (2 Cir.) 39 F. (2d) 564; United States v. Kennerley (S. D. N. Y.) 209 F. 119; State v. Vollmar (Mo.) 389 S. W. (2d) 20; Adams Theatre Co. v. Keenan, 12 N. J. 267, 96 A. (2d) 519; People v. Muller, 96 N. Y. 408, 48 Am. R. 635; City of Cincinnati v. King (Mun. Ct.) 11 Ohio O. (2d) 433, 168 N. E. (2d) 633.