Appeal from the Municipal Court of Chicago; the Hon. LOUIS W.
KIZAS, Judge, presiding. Judgments affirmed.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 21, 1964.
This is an appeal by the defendant from the judgments entered in the Municipal Court of Chicago in two cases wherein the defendant was found guilty of having violated chapter 192-9 of the Municipal Code of Chicago. Defendant waived a jury in both cases and was fined $200 and $10 costs in 62 MC 131232, and $50 and $10 costs in 62 MC 131231. The defendant was charged with knowingly exhibiting and selling two obscene magazines on March 6, 1962 (62 MC 131232) and one obscene magazine on March 8, 1962 (62 MC 131231) in violation of the ordinance.
The questions presented to this court are (1) whether there was evidence that any of the three magazines involved are obscene, and (2) whether the proof offered was sufficient to show scienter on the part of the defendant.
The facts are substantially these:
On March 6, 1962, Wayne Thompson, a Chicago police officer assigned to the Prostitution and Obscene Matter Division, entered defendant's store at 36 1/2 N. Dearborn Street in the City of Chicago with his partner, Michael Dearham. While looking at magazines on a rack at the south wall of the store an unidentified person entered and asked the defendant if he had any new books in, "the usual ones you keep alongside the cash register." The defendant showed the customer a book which was later identified as Baroness Steel's Museum of Torture, which was received in evidence. The customer made no purchase and left the premises. Officer Thompson then asked the defendant if he could see these books. The defendant took Baroness Steel's Museum of Torture from alongside his cash register and showed it to Thompson. Thompson asked if it was any "good." Defendant responded "it must be. I sell a lot of them." He then asked defendant if he had read the book and defendant responded "yes, but what I like you may not." Thompson then asked defendant if the book was "pretty hot," to which defendant answered "yes." The book was then purchased by Officer Thompson at the asking price of $4.50. When Officer Thompson paid the defendant the $4.50 for Baroness Steel's Museum of Torture the defendant advised him that if he brought the book back he would receive a $2 credit toward the next issue of this type of magazine.
Officer Thompson then took from the book racks another book entitled Secret Pleasures, which was stapled in such a way so that the front half and back half of the book were stapled to the front and back covers, respectively, permitting only the center page to be opened. Officer Thompson paid the defendant $2 for this book. This book was admitted in evidence.
On March 8, 1962, two days after the purchase by him of plaintiff's Exhibits 1 and 2, Officer Thompson returned to defendant's store and there found on one of the shelves a magazine entitled Spice. He had a conversation at that time with the defendant with respect to whether new books had been received by the defendant, to which the latter responded in the negative. He paid 50 cents for the magazine and left. The magazine Spice was admitted in evidence at the trial. A cut appears through the top edge of this magazine.
Michael Dearham, another Chicago police officer, testified that he was with Officer Thompson on March 6, 1962, and that his testimony would corroborate that of Officer Thompson with respect to his conversations with the defendant in each and every incident on that date.
The defendant, Charles Kimmel, testified that he sold Officer Thompson Baroness Steel's Museum of Torture, which was shipped to him by mail from New Jersey. He denied having sold Secret Pleasures to the officer on that day. He testified that Officer Thompson asked him if he could "have one of those books," which he sold him for $4.50, after which the officer left the premises.
The defendant denied having had knowledge of the contents of any of plaintiff's three exhibits, but admitted looking at their covers. He also admitted having knowledge that the publisher of Baroness Steel's Museum of Torture published other magazines of the same order. He explained the stapling of the pages together by saying that was done to prevent people from opening and tearing the pages of the magazines, some of which got damaged quicker than others. The cut mark in Spice, he stated, was placed there by the distributor. This cut mark is at the top of the magazine and goes through all of the pages, including the front and back covers. The defendant admitted being able to read English, having completed a grammar school education.
Based upon the foregoing evidence, the trial court found that plaintiff's Exhibits 1, 2 and 3 were obscene, after stating its understanding of the criteria to be considered in determining whether the exhibits appealed to prurient interests.
The defendant contends that no evidence was proffered or appears in the record to prove necessary elements of the ...