Appeals from the Circuit Court of Cook County; the Hon.
Maurice W. Lee, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 24, 1975.
The defendants, Charles Gould, Vincent Geraci, John Geraci, Charles Kimmel, Bernard Kosova, Chiem Blinder, Henry Green and Bill G. Maier, were convicted of the offense of obscenity in the circuit court of Cook County. They appealed to this court under our former Rule 603 (Ill. Rev. Stat. 1969, ch. 110A, par. 603), and as they raised identical questions we consolidated their appeals for argument and opinion.
The defendants were charged in separate complaints with violating the provisions of the obscenity statute (Ill. Rev. Stat. 1969, ch. 38, par. 11-20) by selling obscene magazines. The complaints alleged sales of the following magazines by the defendants indicated: "Orpheus," Charles Gould; "Luv," "Governess," Vincent Geraci; "Toni," John Geraci; "Governess," "Naked Sensation," "Sugar," Charles Kimmel; "Naked Now," Bernard Kosova; "Late Show," Chiem Blinder.
At the trial of each defendant the following stipulation was entered into by the prosecution and defense: "The arrest of the Defendant was lawful; the sale was made to an officer of the Vice Control Division of the Chicago Police Department; the publication, or publications, involved were in open view; no unlawful seizure is involved; no involvement of any minor is involved; Dr. William Haines, a psychiatrist of the Behavior Clinic of the Cook County Psychiatric Unit in the Criminal Court, if called as a witness, would testify that in his opinion the publication, or publications involved in each case had no redeeming social value; and Dr. Edward Kelleher, a psychiatrist, employed by the Municipal Court would testify, if he were called, that in his opinion, the publication or publications, involved are without redeeming social value; no extravagant advertising or pandering, such as that involved in Ginsburg v. United States, 382 U.S. 463, is involved; and that the sale in each case took place in the City of Chicago, County of Cook."
At bench trials the publication or publications involved in each case were admitted into evidence together with the stipulation, and each defendant was found guilty and fined $50.
The defendants' contention is that the magazines are not obscene.
The magazines "Orpheus," "Luv," "Governess," "Toni," "Sugar," and "Kronus" contain photographs of nude females or nearly nude female models dressed only in long stockings and garter belts. In all of the photographs the pubic area is fully exposed and is the focus of the photographs. Each magazine contains photographs that reveal as much as possible of the models' genitals by having the models pose in contrived and even gymnastic positions and by having their legs spread far apart.
"Naked Now" contains color photographs of nearly nude models wearing long stockings and garter belts. The models' legs are apart in many of the photographs, obviously to focus attention on the genital area. In some of the photos abnormal sexual activity between two females is suggested and in others male models are posed with them, in such a way as to suggest that abnormal sexual activity is imminent.
"Diamond Stud" has photographs of female models posed with their legs spread so that their genitals are clearly revealed and are the focal point of the photographs. In two pictures nearly naked women are shown chained by their wrists while being whipped.
The magazine "Late Show," a publication appearing to be directed to lesbians, consists of pictures of nearly naked female models wearing long black stockings and garter belts. And other pictures explicitly depict the models in groups of two or more engaging in a variety of sexual activities with their genitals often prominently displayed.
The magazine "Naked Sensation" contains photographs of completely naked women and a man. Some pictures show them pictured in groups of two and three engaging in various activities with the genitals often displayed. Other photographs show a male and female model taking a shower, and some show female and male models giving each other massages.
The obscenity statute (Ill. Rev. Stat. 1969, ch. 38, par. 11-20) provides, inter alia:
"(a) Elements of the Offense.
A person commits obscenity when, with knowledge of the nature or content thereof, or recklessly failing to exercise reasonable inspection which would have ...