APPEAL from the Circuit Court of McLean County; the Hon.
LUTHER H. DEARBORN, Judge, presiding.
MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:
This is an obscenity action involving three defendants. On July 5, 1972, undercover police officers entered a Bloomington adult bookstore and purchased four sexually explicit magazines from defendant Gary Eugene Whitbeck. On July 18, 1972, officers bought five similar magazines at the same store from defendant Robert Hayden. Whitbeck and defendant Clarence Allen Tannahill were the owners and operators of the store and Hayden was an employee. The State charged Whitbeck and Tannahill with nine counts of possession with intent to disseminate obscene materials in violation of section 11-20(a)(5) of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 11-20(a)(5)). They also charged Whitbeck and Tannahill with nine counts, and Hayden with five counts, of delivery of obscene material in violation of section 11-20(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 11-20(a)(1)). A jury returned verdicts of guilty on all counts. The court ordered Tannahill and Whitbeck to pay fines of $400 for each of the nine possession charges and ordered Hayden to pay a fine of $100 for each of the five counts of delivery. The court was of the opinion that the delivery counts against Whitbeck and Tannahill arose from the same course of conduct as the possession charges so it did not sentence those two defendants for delivery. All three defendants appeal from the convictions and sentences, arguing the following eight points of error:
1. That the statute under which they were convicted is unconstitutionally vague.
2. That, even if constitutional, the statute, as recently interpreted by the Illinois Supreme Court, cannot be applied to them.
3. That the State failed to prove beyond a reasonable doubt that the magazines were obscene.
4. That the court committed reversible error in allowing evidence as to the contents, arrangement, and prices of other publications in the store.
5. That the State failed to prove knowledge of the contents of the magazines on the part of those defendants not actually present at the times of the sales.
6. That variances between the language of the complaints and the language of the jury verdict forms were fatal to the State's case.
7. That the court failed to properly instruct the jury on the permissible inference to be made from circumstantial evidence in this case.
8. That the sentences were excessive.
1 We can deal with the first two issues summarily. Defendants argue that the Illinois obscenity statute does not comport with the standards set forth by the United States Supreme Court in Miller v. California, 413 U.S. 15, 37 L.Ed.2d 419, 93 S.Ct. 2607. The Illinois Supreme Court has, however, examined that statute in the light of Miller and determined that it is constitutional. (People v. Ridens, 59 Ill.2d 362, 321 N.E.2d 264; People v. Gould, 60 Ill.2d 159, 324 N.E.2d 412.) Defendants urge that, despite these cases, this court should hold the statute unconstitutional. This, of course, we cannot do. When the Supreme Court has declared the law on any point, it alone can overrule and modify its opinion and we are bound by its decision. Agricultural Transportation Association v. Carpentier, 2 Ill.2d 19, 116 N.E.2d 863.
2 Defendants also argue that the interpretation given Miller in Ridens cannot be applied to them retroactively. The Supreme Court addressed itself directly to this issue, as well, in Ridens, stating that:
"Our holding that section 11-20 of the Criminal Code * * * [is] construed to incorporate parts (a) and (b) of the Miller rather than the Memoirs standards may not be applied retroactively if to do so renders their construction less favorable to defendants. (People v. Patton, 57 Ill.2d 43, 48.) In our opinion the changes do not have that effect, and we find no impediment to the retroactive application of the statute and ordinance as now construed." 59 Ill.2d 362, 374-75, 321 N.E.2d 264, 270-71.
Defendants next argue that, given the constitutionality of the Illinois obscenity statute, and its applicability to them, the State nonetheless failed to prove that the magazines were obscene. At trial, defendants presented testimony in their favor from two psychologists on the issues of whether the magazines substantially exceeded contemporary statewide community standards in the representations of sexual matters, whether the magazines had social value, and whether they appealed to prurient interest. The only testimony the State presented was that of a minister who said that, in his opinion based on his experience as a minister, none ...