APPEAL from the Circuit Court of Will County; the Hon. ROBERT
J. IMMEL, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 5, 1973.
James Rota, hereinafter referred to as the defendant, appeals from a conviction of the circuit court of Will County for the crime of obscenity which resulted from his sale of a book entitled "Abducted" in a concession owned and operated by him in the Bluebird Bus Depot in Joliet, Illinois. He was sentenced to pay a fine of $500 and $120 in court costs.
A more detailed summarization of the facts is that on the evening of September 4, 1968, a Donna Mangun entered the Bluebird Bus Depot in Joliet and selected a magazine from the defendant's concession stand entitled "Photoplay." She then asked the defendant if he had a book entitled "Candy", and upon receiving a negative reply she asked if any of the books in a stack near the cash register were good. The defendant then selected a book from the stack entitled "Abducted" and said it was just like the book "Candy" and that she would enjoy it. The defendant then rang up the sale, placed the book "Abducted" and the magazine "Photoplay" in a bag which Donna Mangun took with her when she departed from the concession stand. She kept the book overnight and the following day turned it over to the State's Attorney's office.
• 1 The defendant first contends that since Donna Mangun, the purchaser of the book "Abducted" was not a juvenile her right to privacy was not violated and sale of the book is therefore constitutionally protected. More precisely stated it is the defendant's contention that obscenity vel non is now constitutionally protected. Defendant relies on this position primarily on the case of Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414. We think that this contention of the defendant is without merit since this exact question was presented in the case of People v. Penney, 7 Ill. App.3d 191, 287 N.E.2d 220, and was disposed of by the reviewing court which stated as follows:
"Finally, we think that defendant's argument that under recent holdings of the United States Supreme Court the Roth decision has been modified to the extent that obscenity vel non is now constitutionally protected is without merit. Defendant relies, in this position, primarily on the case of Redrup v. New York, supra, and Stanley v. Georgia (1969), 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542. We previously noted that in the recent case of United States v. Reidel, supra, the Supreme Court reaffirmed the Roth case as the governing law in obscenity cases. As we also noted, the Illinois Supreme Court in Ridens and Walker, supra, interpreted Reidel as overruling the Redrup case, insofar as it modified the Roth standard for obscenity in any way. The Roth case clearly said that obscenity without more is without constitutional protection, and thus defendant's argument to the contrary otherwise must fail."
The defendant next argues that the book "Abducted" is not obscene as a matter of law under the standard laid down by the United States Supreme Court and as interpreted by the Illinois courts. In Roth v. United States, 354 U.S. 476 at 489, 77 S.Ct. 1304 at 1311, 1 L.Ed.2d 1498, obscenity was defined 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."
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 the 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. People v. Penney, 7 Ill. App.3d 191, 287 N.E.2d 220.
Our Illinois statute has incorporated the standards of Roth for the purpose of defining obscenity. Chapter 38, Paragraph 11-20(b), Illinois Revised Statutes 1967, provides:
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. A thing is obscene even though the obscenity is latent as in the case of undeveloped photographs."
The defendant argues that the holding in the Roth case has been modified by the decision in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515, and an examination of Redrup does disclose that additional criteria in addition to those set out in Roth were required to be present in order to make a constitutional determination of whether or not certain material could or should be found to be obscene. However, we need not concern ourselves with the additional criteria set forth in Redrup since the case of United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, has settled any ambiguity that may ...