APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
MORAN, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant Alan Stromblad was charged by complaint with the offense of obscenity (Ill. Rev. Stat. 1973, ch. 38, par. 11-20) in that defendant, with knowledge of the nature and content thereof, or having recklessly failed to exercise a reasonable inspection which would have revealed the nature and content thereof, sold to Chicago police officer George Carey a magazine entitled "Fuck Studs" for the sum of $5. Following a jury trial in the circuit court of Cook County, defendant was found guilty and a judgment of one year's probation was entered on the verdict. Defendant appeals his conviction, raising the following issues for appellate review: (1) Whether the trial court erred in failing to grant defendant's motion to dismiss where the complaint was phrased in the disjunctive alleging two alternative and disparate acts; (2) Whether defendant's motion for directed verdict should have been granted based upon an absence of proof of the element of "knowledge"; (3) Whether the trial court erred by failing to include the phrase "utterly without redeeming social value" in the standard to be used for the determination as to whether a magazine is obscene and given to the jury as an instruction; (4) Whether the prosecutor's remarks during closing argument unduly prejudiced the jurors, denying defendant a fair trial; and (5) Whether defendant was proven guilty beyond a reasonable doubt.
George Carey, a police officer for the City of Chicago, Vice Control Division, Prostitution and Obscene Matters Section, was the sole witness on behalf of the State. Carey testified that on November 12, 1974, he went to the West Town Adult Book Store at 3429 W. North Avenue, Chicago, Illinois. Carey entered the bookstore, paid defendant Stromblad, the bookstore clerk, a $1 admission fee, and eventually took the publication "Fuck Studs" from a magazine rack and placed it on the counter facing Stromblad. Stromblad requested another $4 from Carey and Carey paid this additional amount. Stromblad then placed the magazine in a paper bag. Carey removed the magazine from the bag, identified himself as a police officer, held the magazine in front of Stromblad and asked Stromblad if he would sell a magazine of this type to a minor. Stromblad answered that he would not sell the magazine to a minor.
Officer Carey departed from the bookstore with the magazine and went to a police station. Subsequently, the magazine was presented to a judge and an arrest warrant for defendant Stromblad was issued. Carey further testified that defendant was contacted after the issuance of the arrest warrant and defendant voluntarily surrendered himself to the police.
Defendant Stromblad was the sole witness in his own behalf. He testified that he was employed as a clerk at the West Town Book Store, 3429 W. North Avenue, Chicago, Illinois. Defendant's duties, as clerk, included sitting behind the counter, sales record-keeping and various janitorial functions. When asked to give a description of the premises, defendant described the premises in terms of the location of types of books sold, be they "hard core," "soft core" or "erotic" publications. Defendant further testified that he would occasionally get inventory for the store from a warehouse and that his prior employment was of a similar nature in an adult book store.
Defendant testified that he could not remember "Fuck Studs" as the publication sold to Officer Carey. Defendant attributed his lack of memory to the fact that there were approximately 16 books of the same nature and that they all looked the same to him. Defendant did remember looking at certain "hard core" publications from cover to cover but "Fuck Studs" had not been one of these publications. Defendant testified that he would not sell "Fuck Studs" to a minor.
Defendant argues that the trial court erred in failing to properly instruct the jury as to the proper standards to be applied in determining whether the publication was obscene. The trial court instructed the jury, inter alia, that:
"Under the law three elements must exist. It must be established, A, that 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 the contemporary community standards relating to the description or representation of sexual matters. C, the material, taken as a whole, lacks serious literary, artistic, political or scientific value."
Defendant contends that part C of the instruction should have stated, "the material is utterly without redeeming social value." Defendant claims that the erroneous instruction prejudiced defendant and deprived him of the due process of law.
Defendant is correct in his contention that part C of the instruction should have stated, "the material is utterly without redeeming social value." (People v. Gould (1975), 60 Ill.2d 159, 324 N.E.2d 412; People v. Thomas (1976), 37 Ill. App.3d 320, 346 N.E.2d 190.) In People v. Thomas, the jury, similarly, was erroneously instructed as to part C of the standard to be applied in determining whether a motion picture was obscene. In fact, the trial court failed to include part C as part of the instruction. Defendant was convicted despite the erroneous instruction but the appellate court held that the failure to include part C of the standard in the instruction constituted reversible error. We believe that Thomas is controlling in the instant case. A jury must be instructed on the offense charged (People v. Galvan (1976), 42 Ill. App.3d 390, 356 N.E.2d 139) and it is well established that it is the duty of the trial court to accurately instruct the jury as to the law to be applied in a given case. (People v. Watson (1975), 26 Ill. App.3d 1081, 325 N.E.2d 629.) In the instant case it is clear that the trial court erroneously instructed the jury as to the elements of the offense of obscenity, and such error necessitates reversal by this court.
Since resolution of the jury instruction issue is dispositive of this case, it will not be necessary to address the other issues which defendant raises on appeal. Accordingly, the judgment of the circuit court of Cook County is reversed and remanded.
Mr. JUSTICE PUSATERI, specially concurring:
I interpret both the majority and the dissenting opinions in this case as acknowledging that the trial court was in error in failing to instruct the jury that it should consider whether the material in question "is utterly without redeeming social value." The difference in these two opinions however, is whether this acknowledged error was so prejudicial that it denied the defendant due process of law.
The dissenting opinion concludes that irrespective of which standard was used in the jury instruction, that it neither did nor could prejudice the defendant since the subject booklet was "hardcore pornography in its rawest form." While I agree that the subject booklet is hardcore pornography in its rawest form, this characterization obfuscates the issue. I do not believe that we as a reviewing court may surmise what the verdict might have been had a proper instruction been given; nor may we affirm a proceeding which undercuts the import and effect of jury deliberations and findings by ruling that an erroneous statement of law is not prejudicial.
"In our judge-and-jury system it is the duty of the court to inform the jury as to the law. We must assume that jurors do not fall short of their constitutional functions and follow the instructions of the trial judge. This assumption is part and parcel of our system. As Mr. Justice Holmes long ago observed: `But it must be assumed that the constitutional tribunal does its duty. * * *' Aikens v. Wisconsin (1904), 195 U.S. 194, 206, 49 L.Ed. 154, 160, 25 S.Ct. 3, 6."
In this regard, the court in Jenkins found that giving the jury contradictory instructions on an essential element in the case was prejudicial error, since it was the court's duty, "* * * to give the jury proper guidance, not to generate confusion * * *."
This problem was also expressed in the recent case of Smith v. United States (1977), 431 U.S. 291, 52 L.Ed.2d 324, 97 S.Ct. 1756, where the defendant was indicted under a Federal statute which prohibited the mailing of obscene materials; at the time of the mailings, the defendant's activities did not violate a State law. Mr. Justice Blackmun and the majority emphasized:
"The fact that the jury might measure patent offensiveness against contemporary community standards does not mean, however, that juror discretion in this area is to go unchecked." (431 U.S. 291, ...