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People v. Penney

AUGUST 17, 1972.




APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH R. GILL, Judge, presiding.


The defendant was charged in a complaint with the offense of obscenity in violation of Ill. Rev. Stat. 1969, ch. 38, par. 11-20. After a bench trial, defendant was found guilty and fined $500 plus costs. He appeals.

We affirm.

The relevant facts are as follows: On November 14, 1969, a Maywood police sergeant purchased two magazines, to wit: one copy of Adult Words and Pictures and one copy of Bottom from the defendant's store in Maywood, Illinois. On November 17, 1969, the same police officer appeared before his Honor Judge Delaney who, after examining the magazines, signed a search warrant for defendant's store and a complaint and arrest warrant against the defendant. The defendant was subsequently arrested and released on bail.

On March 20, 1970, there was a hearing on defendant's motion to suppress the magazines as evidence. At the hearing the trial court quashed the search warrant but denied defendant's motion to dismiss the complaint. Prior to trial there was a stipulation between opposing parties as to the facts. The stipulation set out the facts essentially as they are set out above with the additional note that the police sergeant who purchased the magazines had merely picked them off a rack in a public area of the store, took them to the counter where he paid for them and received a requested receipt. As already noted, the trial resulted in defendant's conviction and fine.

On appeal the first issue raised by defendant is that his arrest and subsequent criminal conviction under the Illinois Obscenity Statute constituted an unconstitutional abridgement of his right to freedom of speech and press as guaranteed him under the First and Fourteenth Amendments of the United States Constitution. This is so, urges defendant, because he was not afforded, before arrest, a prior adversary hearing to determine whether or not the magazines were obscene. Without such a hearing defendant argues that, as a commercial book dealer, he is placed in a position of disseminating expression at the risk of fine and imprisonment should State authorities subsequently determine that what he has disseminated is obscene and without constitutional protection. The necessary result is a prior restraint upon freedom of speech and press. Defendant cites three recent Federal cases in support of his position: Cambist Films v. Illinois (1968), 292 F. Supp. 185; Delta Book Distributors v. Cronvich (1969), 304 F. Supp. 662; Poulos v. Rucker (1968), 288 F. Supp. 305.

• 1 The "prior restraint" argument urged on this Court by the defendant has been successfully made on many prior occasions. However, the fact situations in these cases, as exemplified by the cases cited by plaintiff, have usually involved seizures of films or of the total or greater part of a particular supply of magazines or books. Under the facts of the instant case, we think the recent holding of our Supreme Court in the consolidated cases of People v. Ridens and City of Moline v. Walker (1972), 51 Ill.2d 410, necessitates the rejection of plaintiff's argument on this issue. In the Ridens and Walker cases the complaints against the defendants were based on the purchase of the offending magazines by police officers. At their bench trials, defendants made motions to dismiss on the grounds that they were not afforded prior adversary hearings. The motions were denied, and defendants in both cases were found guilty. On appeal our Supreme Court said at page 416:

"Finally, the defendants claim that they were entitled to an adversary hearing on the question of whether, in fact, the offending publications were obscene, prior to the issuance of the warrants for their arrest. In support of this contention they cite numerous decisions which involved the seizure of books, magazines and films pursuant to the issuance of search warrants. In particular, the defendants cite People v. Kimmel, 34 Ill.2d 578, in which a conviction was reversed for just such a seizure.

We find the rationale of these cases inapplicable to the circumstances of the cases at bar. The cited cases involve the constitutional issue of prior restraint of the publications under the first amendment to the United States constitution. In the cases before us, no search warrants were issued, there was no seizure of all of the copies of the magazines in question, the arrests were made after sales of the magazines to the police officers, not before, and the defendants' businesses were not interrupted. We find, therefore, that the defendants were not entitled to an adversary hearing on the question of obscenity prior to their arrest."

See also Weintraub & Nawadylo v. Scott (N.D. Ill., 1971), No. 70 C 1235. On the basis of the above quoted language, we conclude that the instant defendant was not entitled to a prior adversary hearing on the issue of obscenity.

The second issue raised by defendant is that the magazines are non-obscene as a matter of constitutional law, or in the alternative that obscenity vel non is protected by the guarantees of the First and Fourteenth Amendments. Defendant argues that the application of the standards for obscenity as set out in Supreme Court cases, particularly the case of Redrup v. New York, would necessitate our holding the instant magazines non-obscene. Therefore, defendant argues that interference with their provision or sale is protected by the free speech provisions of the First Amendment and the Due Process Clause of the Fourteenth Amendment of the United States Constitution.

In Roth v. United States (1957), 354 U.S. 476, the Supreme Court held that obscenity as such was outside the protection of the First Amendment. The definition for obscenity set out in Roth and elaborated in the later cases of Manual Enterprises v. Day (1962), 370 U.S. 478, and Jacobellis v. Ohio (1964), 378 U.S. 184, has been repeated many times: "We defined obscenity in Roth in the following terms: `[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' 354 U.S. at 489. Under this definition, as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value." A Book v. Attorney General (1966), 383 U.S. 413, 418.

At page 419 this latter opinion further notes: "Each of the three Federal constitutional criteria is to be applied independently; the social value of the book can neither be weighed against nor canceled by its prurient appeal or patent offensiveness." 383 U.S. at 419.

Our Illinois statute has incorporated the Roth standards for obscenity. Ill. Rev. Stat. 1969, ch. ...

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