Possession of Obscene Magazines. Appeal from County Court at Law No. 3 of Harris County; penalty, fine of $300.00. Hon. Wendell A. Odom, Judge Presiding.
Seymour Lieberman, Houston, for appellant.
Dan Walton, District Attorney, Carl E. F. Dally, James T. Garrett, Assistants District Attorney, Houston, and Leon Douglas, State's Attorney, Austin, for the state.
Morrison, Presiding Judge. Davidson, Judge, concurring. Woodley, Judge, dissenting.
[ 170 Tex. Crim. Page 231]
The offense is possession of magazines for the purpose of sale in violation of Article 527, V.A.P.C.; the punishment, a fine of $300.00.
At the outset, appellant challenges the constitutionality of
[ 170 Tex. Crim. Page 232]
that portion of Article 527, V.A.P.C., upon which this conviction rests and, by motion to quash, contends that said statute violates the freedom of the press as provided for in the Constitution of the United States and Section 8, Article I of the Texas Constitution, by making it an offense with punishment affixed thereto for a person to knowingly have in his possession for sale certain magazines.
The pertinent portion of Article 527, as amended in 1957, provides:
"Whoever shall within this State engage in the business of editing, publishing, or disseminating any pamphlet, magazine, or any printed paper devoted mainly or purporting to be devoted mainly to the publications of whoring, lechery, assignations, intrigues between men and women or immoral conduct of persons, or of depraved acts showing violent brutality, or shall knowingly have in his possession for sale or shall keep for sale or distribute or in any way assist in the sale or shall give away such pamphlet, magazine or printed matter in this State * * *."
We are cognizant of the fact that the guaranties of freedom of the press are not absolute at all times and under all circumstances. The protection given by the Federal and Texas Constitutions to the press does not include the possession, by a person knowingly, for the purpose of sale of any magazine containing material which is denounced by penal statute and condemned when measured by application of the following test: "Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."
The Supreme Court of the United States has announced the above test as applicable to cases of the nature of the one before us, and such rule is here controlling. Roth v. U.S. & Alberts v. Calif. 354 U.S. 476, 1 L. ed. 2d 1498, 77 S. Ct. 1304 (1957), and numerous cases therein cited and reviewed. It is therefore concluded that the provisions of Article 527, supra, providing that whoever shall knowingly have in his possession for the purpose of sale any magazine which is devoted mainly to the publication of whoring, lechery, assignations, intrigues between men and women, of immoral conduct of persons, or depraved acts showing violent brutality when considered according to the proper standard, do not offend the constitutional guaranties of a free press.
[ 170 Tex. Crim. Page 233]
It is further urged in the motion to quash that the provisions of Article 527 do not provide reasonably ascertainable standards of guilt and therefore violate the constitutional requirements of due process. The words of the statute as used therein are sufficiently descriptive of the character of the material denounced. When any magazine is devoted mainly to such material, the magazine contravenes the provisions of said statute. It is therefore concluded that said statute provides reasonably ascertainable standards which meet the requirements of due process, and the refusal of the trial court to grant the motion to quash the information was not error.
However, it is contended that the trial court erred in refusing to give requested charges which were, in substance, that the magazines were not to be considered in detached and separate portions but as a whole, and by the present day standards of magazines and literature sold and distributed in the community.
It will be noted that appellant introduced evidence which raised the matters presented by the requested charges, and she was entitled to have these matters submitted to the jury by an appropriate instruction, applying the test set forth in Roth v. U.S., or one of similar import, such as, whether to the average person, applying the existing community standards at the time and place alleged, the material, as a whole, is devoted mainly to, and appeals to, lustful interest.
In People v. Bunis, 298 N.Y.S. 2d 568, a prosecution for the sale of obscene magazines, reversed on other grounds, we find the following:
"It cannot be controverted today that to find a defendant guilty of a violation of Section 1141, we must have first: a showing that the items that form the basis of the charge are obscene. The test of obscenity is a varying one, not a static one. It is not possible of exact definition. The proper test of obscenity today is whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. Any test which is based on other considerations such as the possible effect on the young and very susceptible, or, on the other hand, on the sensualists and libertines, does not meet the constitutional test of obscenity. Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. ed. 2d 1498; Peopel v. Brooklyn News Co., 12 Misc. 2d 768, 174 N.Y.S. 2d 813."
[ 170 Tex. Crim. Page 234]
The Roth test has been consistently recognized, as shown by the following cases: Alexander v. U.S., 271 F. 2d 140, 145-146; Search Warrant of Property at 5 W. 12th St. v. Marcus, 334 S.W.2d 119, 123-124 (Mo.); Eastman Kodak Co. v. Hendricks (1958), 262 F. 2d 392, 394-398; Capitol Enterprises, Inc. v. City of Chicago (1958), 260 F. 2d 670, 673-674; Grove Press, Inc. v. Christenberry (1960), 276 F. 2d 433, 437; Empire Pictures Distributing Corp. v. City of Fort Worth, 273 F. 2d 529, 537, 541; Smith v. People of California, 361 U.S. 147, 80 S. Ct. 215, 4 L. ed. 2d 205.
In this case, no instruction was given informing the jury of the test set out in Roth. If the jury had been so instructed and had found that the test when applied to said magazines did not condemn them, then such findings would have authorized an acquittal. In the absence of such instruction, appellant was deprived of a valuable right and the refusal was prejudicial. The ...