APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
L. DUNNE, Judge, presiding.
MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 3, 1973.
This appeal involves the sale of allegedly obscene magazines. On December 5, 1969, the Circuit Court of Cook County entered judgments in 21 separate cases finding the defendants, all commercial book sellers, guilty of violating the Chicago obscenity ordinance. (Municipal Code of Chicago, 1971, sec. 192-9.) Each case was tried without a jury upon stipulated evidence, and each resulted in the defendant being fined. The defendants filed a consolidated appeal directly to the Supreme Court, and the Supreme Court ordered the cause transferred to this court.
The facts are the same in each case. Police officers purchased one or more magazines from each of the defendants. The officers presented these magazines to various judges of the Circuit Court of Cook County who found probable cause for the filing of complaints and issuance of warrants for the arrest of the defendants. At trial, it was stipulated to by the parties that prior to their arrest the defendant received no notice that an arrest was to be sought, nor was an adversary hearing held for the purpose of determining whether the magazines were obscene. It was also stipulated that all of the magazines were purchased by police officers and that none of the cases involved pandering or sales to juveniles. The City introduced into evidence the magazines themselves, information pertaining to their purchase and, when such was in issue, evidence as to whether a particular defendant was aware of the contents of the magazine(s) which he sold. At the close of this evidence each of the defendants was found guilty and fined.
On appeal the defendants contend that (1) the proceedings violated their constitutional rights to freedom of speech and press because no hearing was held prior to their arrest to determine whether the magazines were obscene and (2) that the magazines in questions are not obscene and thus are protected by the United States and Illinois constitutions.
In its brief and again in oral argument the City conceded that the recent decision of the Illinois Supreme Court in City of Chicago v. Geraci, 46 Ill.2d 576, is dispositive of 16 of the cases included in this appeal. In Geraci, the defendants, some of whom are also defendants in the present case, were convicted of violating the Chicago obscenity ordinance. Involved were 17 magazines and one paperback book, all allegedly obscene. In reversing the convictions the court stated that:
"The third category of publications consists of 14 magazines which contain photographs, many in color, of completely naked female models. * * * Many of the models in these magazines appear in a reclining position on a bed or sofa, and all of them are posed seductively with their legs spread in such a way that their genitals are not only clearly revealed but are made the focal point of the photograph. Aside from the nature of the pose, however, none of the models is engaged in any explicitly sexual activity either alone or in conjunction with another person."
The court held that none of the magazines in the "third category" was obscene. In the present case, the following magazines are of the same type: "Exciting"; "Eurovision", Vol. 1, No. 1; "Private Sexational", Vol. 2; "Lovey Dovey", Special Collectors Edition No. 3; "Tammy", Vol. 1, No. 1; "Manon", Special No. 9; "Zinger", Special Collectors Edition No. 1; "Exclusive in Colors"; "Cat", No. 1; "Garter Girls", Vol. 3, No. 3; "Pendulum", Vol. 1, No. 2; "Madames"; "Black and Sexy", Special Collectors Edition No. 1; "France", Vol. 1, No. 2, and "Lights 'n Shadows", No. 5. Also in this category are six photographs sold by the defendant Vincent Geraci.
As to the convictions based upon the sale of these items the City has confessed error. Accordingly, the following convictions are reversed: Vincent Geraci, cause number 69 MC1-397002; Charles Kimmel, cause number 69 MC1-397004; Charles Kimmel, cause number 69 MC1-397005; John Geraci, cause number 69 MC1-397006; Vincent Geraci, cause number 69 MC1-397007; Charles Gould, cause number 69 MC1-397008; Vincent Geraci, cause number 69 MC1-397021; Bill Maier, cause number 69 MC1-397022; Vincent Geraci, cause number 69 MC1-397023; Charles Kimmel, cause number 69 MC1-397025; Charles Kimmel, cause number 69 MC1-397026; Leo Weintraub, cause number 69 MC1-397034; Charles Gould, cause number 69 MC1-397036; Marc Lully, cause number 69 MC1-397040, and Mark Eber, cause number 69 MC1-397042.
We next direct our attention to the eight remaining publications, which the City contends are obscene. These are: "Naked"; "Tonight", Vol. 7, No. 4; "Jaybird Journal"; "Busy Body"; "Heads Up", Vol. 1, No. 1; "Love Birds"; "Lasses and Glasses", Vol. 2, No. 2, and "Two", Vol. 1, No. 1.
The ordinance under which the defendants were convicted provides that:
"It shall be unlawful for any person knowingly to exhibit [or] sell * * * any obscene book [or] magazine * * *. Obscene for the purpose of this section is defined as follows: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests."
The constitutionality of this ordinance was upheld in City of Chicago v. Kimmel, 31 Ill.2d 202. It is the contention of the City that the eight magazines in question are of the type held to be obscene as a matter of law in People v. Ridens, 51 Ill.2d 410. In ...