APPEAL from the Circuit Court of Cook County, Criminal
Division; the Hon. WALTER P. DAHL, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 17, 1965.
The defendant, June Sikora, was indicted by the grand jury of Cook County for the offense of obscenity, committed by the sale of obscene books. She pleaded not guilty and waived a jury trial. She was tried before a judge, found guilty and fined $1000, and now appeals directly to this court. Questions arising under the constitutions of the State and of the United States are involved.
Before turning to the defendant's contentions that neither the obscene quality of the books in question nor her knowledge of their contents was sufficiently proved, we shall consider first her contentions that the statutory definition of obscenity, as well as certain statutory provisions relating to the admissibility of evidence, are unconstitutional. The statute defines obscenity as follows: "A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters." Ill. Rev. Stat. 1963, chap. 38, par. 11-20. (Italics supplied.)
In the face of this language, it is the defendant's position that "This section states that something would be obscene (1) if a thing as [sic] considered as a whole its predominant appeal is to prurient interest in nudity, sex or excretion or (2) goes substantially beyond customary limits of candor." This statement ignores the fact that the statute uses the conjunctive "and" rather than the disjunctive "or." The defendant advances no reasons to support a disjunctive construction. Apparently her argument rests upon the fact that the Model Penal Code of the American Law Institute, in its proposed official draft, underscored the conjunctive purpose by changing the simple but explicit "and", which appeared in earlier drafts, to read "and if in addition." The comments to the proposed official draft of the Model Penal Code make it clear that no change in substance was intended. (Model Penal Code, Tentative Draft No. 6, p. 1; Proposed Official Draft, 237, 240.) Moreover, the joint committee which drafted the proposed Illinois Criminal Code of 1961 stated in its comments: "Under subsection (b) material must appeal to sexual interest (or interest in nudity or excretion), but it must also go beyond customary limits of candor in the description in such things." Tentative Final Draft of the Proposed Illinois Criminal Code of 1961, p. 275.
The defendant also contends that paragraphs (c)(1), (c)(2), (c)(3), (c)(4) and (c)(5) of section 11-20 of the Criminal Code of 1961, which specify kinds of evidence that are admissible in an obscenity prosecution, are unconstitutional. These provisions are:
"(c) Interpretation of Evidence
"Obscenity shall be judged with reference to ordinary adults, except that it shall be judged with reference to children or other specially susceptible audience if it appears from the character of the material or the circumstances of its dissemination to be specially designed for or directed to such an audience. In any prosecution for an offense under this Section evidence shall be admissible to show:
"(1) The character of the audience for which the material was designed or to which it was directed;
"(2) What the predominant appeal of the material would be for ordinary adults or a special audience, and what effect, if any, it would probably have on the behavior of such people;
"(3) The artistic, literary, scientific, educational or other merits of the material, or absence thereof;
"(4) The degree, if any, of public acceptance of the material in this State;
"(5) Appeal to prurient interest, or obscene [sic. probably should read `absence.' See par. (3) above.] thereof, in advertising or other promotion of the material; * * *." Ill. Rev. Stat. 1963, chap. 38, par. 11-20.
No evidence was received or offered which would suggest that the books in question were addressed to a special audience, and so no issue arising under paragraph (c)(1) or (c)(2) is presented in this case. No evidence was reviewed or offered under paragraph (c)(3), but this paragraph presents a different problem, since under Roth v. United States, 354 U.S. 476, 484-85, 1 L.ed.2d 1498, and Jacobellis v. United States, 378 U.S. 184, ...