APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY
J. BOSCO, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The six defendants, James Speer, Thomas Yates, Morton Weiss, Milton Glass, David Mendenhall and Frank Orlando, were charged by nine complaints with obscenity in that they sold obscene magazines with knowledge of the nature or content thereof. (Ill. Rev. Stat. 1973, ch. 38, par. 11-20.) In separate bench trials each defendant was found guilty as charged. The sentences varied from a $100 fine to one year probation. In this consolidated appeal defendants contend (1) that the magazines in question are not obscene and (2) that the State failed to prove that the defendants knew the nature or contents of the magazines.
Defendant James Speer was charged with one count of obscenity in that he sold an obscene magazine, "All Day Suckers," to George Carey. At trial Carey, an investigator for the Chicago Police Department, testified as follows: On October 16, 1973, he went to the T.C. Adult Book Store in Chicago. A sign on the front of the store indicated that no one under 21 was allowed to enter. Carey entered, took a copy of "All Day Suckers" from a rack and put it on the check-out counter in front of Speer. Speer asked for $6, which Carey paid. Before leaving Carey again showed the magazine to Speer.
Speer testifed that he was employed as a clerk at the store but had nothing to do with the selection of "books."
The front cover of "All Day Suckers" has explicit color photographs of people engaged in acts of fellatio and intercourse, with emphasis on genitalia. The cover bears a $10 price in print and a $6 price tag. It also bears the following phrases: "Restricted to Mature Adults Over 21 Years of Age," "56 Vivid, Full-Color Photos!," "An Authoritative Pictorial of Oral-Genital & Coital Love." The magazine contains some innocuous text but is primarily comprised of explicit color photographs of people engaged in acts of fellatio, cunnilingus, and sexual intercourse, with extreme close-ups of genitalia.
Defendant Thomas Yates was charged in three complaints with obscenity. The first complaint charged that he sold an obscene magazine, "Lips and Tongue Sex, No. 4" to Stratford Peterson. At trial Peterson, an investigator for the Chicago Police Department, testified as follows: On June 4, 1973, he entered the Loop News Adult Book Store in Chicago, paying Yates a 50 cents admission fee. Peterson took "Lips and Tongue Sex, No. 4" from a rack, presented it to Yates and paid him for it. Peterson then opened the magazine to the centerfold which contained two color photos and showed it to Yates.
The front cover of "Lips and Tongue Sex, No. 4" has a photograph of a woman holding her exposed breasts and licking one of them. Her legs are spread and the back of a head is visible between them, suggesting that an act of cunnilingus is being performed. The magazine bears a $5 price and the cover has the following printed on it: "The Psychodynamics of Oral Lovemaking," and "Warning: You might find this magazine sexually stimulating!" The centerfold, which Peterson testified he showed to Yates, has two full-page color photographs showing explicit acts of fellatio and cunnilingus, with extreme closeups of genitalia. Along with some innocuous text the magazine contains numerous color and black-and-white photographs of people engaged in acts of fellatio and cunnilingus with extreme closeups of genitalia.
The second complaint charges Yates with the sale of an obscene magazine, "Inquiry, Vol. 3, No. 2" to Stratford Peterson. At trial Peterson testified as follows: On April 5, 1974, Peterson went to the Harrison Book Store, which bears signs identifying it as an adult book store and barring minors. He entered the store and paid Yates a 50 cents admission fee. Peterson took "Inquiry, Vol. 3, No. 2" from a rack, put the magazine face up on the checkout counter manned by Yates, and paid Yates for it. Yates told him in conversation that he didn't allow minors to enter the store and checked numerous identifications.
Yates testified that he was employed as a clerk at the store, had nothing to do with the selection of the "books," "occasionally" looked at the "books," but was not aware of the content of this or any other book.
"Inquiry, Vol. 3, No. 2" has on its cover color photographs showing naked men and women in positions suggesting that acts of fellatio and cunnilingus are being performed. It bears a $6 price and the following phrases: "Bisexuality," "exclusively photo-illustrated," "24 Full-Color Pages," "Educational material for adults only Sale to minors prohibited." Along with text which purports to be a study of the issue of bisexuality the magazine contains numerous color and black-and-white photographs showing people engaged in acts of fellatio, cunnilingus, sexual intercourse, and bondage, with explicit closeup detail of genitalia.
The third complaint charged Thomas Yates with sale of an obscene magazine, "Sexualis, Vol. 2, No. 1," to Stratford Peterson. At trial Peterson testified as follows: On September 14, 1973, he entered the Harrison Adult Book Store, paid Yates a 50 cents admission fee. Peterson then took "Sexualis, Vol. 2, No. 1" from a rack, brought it to the checkout counter and paid Yates for it. In conversation Yates told Peterson that he would not sell the magazine to minors and that he did not allow people under 21 into the store.
Yates did not testify, but it appears that there was a stipulation that his testimony at his trial for the sale of "Inquiry, Vol. 3, No. 2" would be the defense for this trial. That testimony was that he was employed as a clerk at the store, "occasionally" looked at the "books," but had nothing to do with their selection and knew nothing of the contents of any of them, including the one in issue.
The cover of "Sexualis, Vol. 2, No. 1" has a large color picture of a man performing what appears to be an act of cunnilingus on a woman whose breasts are bared. The cover bears a $6 price and the following phrases: "Educational Material for Adults Only, Sale to Minors Prohibited," "The Forbidden Pleasure A realistic look at Oral Sex practices and attitudes," "The American Swing Scene An Inside Report on Group Sex Activities." Along with textual material purporting to relate to the illustrations, the magazine contains many color and black-and-white ...