COMMONWEALTH vs. ROGER A. GIRARD (and nine companion cases).

COMMONWEALTH vs. ROGER A. GIRARD (and nine companion cases).

358 Mass. 32

April 6, 1970 - June 25, 1970

Bristol County

Present: WILKINS, C.J., SPALDING, CUTTER, REARDON, & QUIRICO, JJ.

An indictment under G. L. c. 272, Section 28A, as appearing in St. 1959, c. 492, Section 2, failing to allege the essential element of scienter was defective, and a conviction thereunder must be set aside. [35]

The First Amendment of the Federal Constitution invalidates the provision of G. L. c. 272, Section 30, as appearing in St. 1956, c. 724, Section 1, that in a prosecution thereunder it is unnecessary to prove scienter as an element of the offence; and a conviction upon an indictment under Section 30 must be set aside. [35-36]

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TEN INDICTMENTS found and returned in the Superior Court on June 4, 1968.

The cases were reported by Hennessey, J.

Leonard A. Kamaras, of Rhode Island (John M. Xifaras with him) for the defendants.

Ernest I. Rotenberg, Assistant District Attorney, for the Commonwealth, submitted a brief.

SPALDING, J. The defendants were convicted for violations of G. L. c. 272, Section 28A (as appearing in St. 1959, c. 492, Section 2) [Note 1] and Section 30 (as appearing in St. 1956, c. 724, Section 1) [Note 2] for the sale, display, and possession with intent to sell of certain magazines alleged to be obscene. The cases were tried without a jury and findings of guilty entered. The judge, being of opinion that the cases involved questions of law of such importance and doubt as to require the decision of this court, reported them, the defendants consenting. G. L. c. 278, Section 30.

The relevant facts may be summarized from the report as follows. Magazine World and Literature, Inc. are two stores located in New Bedford selling a variety of magazines and other items. The defendant Saba owned and operated Magazine World, and employed the defendant Dupont as a sales clerk. The defendant Girard was the manager of Literature, Inc., in which the defendants St. James and Grenier were employees. The materials in question were on open racks toward the rear of the store,

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some thirty feet, or halfway back, from the store's entrance. On May 7, 1968, the New Bedford police seized, pursuant to a search warrant, a quantity of books, magazines, and written materials, including the magazines "Esoteria" and "Shocker" from Literature, Inc. The defendant Girard was indicted for possession with intent to sell of obscene literature in violation of Section 28A, and for having displayed sado-masochistic material for sale to a child under eighteen, in violation of Section 30. In May, 1968, Deborah Isherwood purchased a magazine "Ankh Life Symbol" from the defendant St. James at Literature, Inc. On May 26, 1968, "Ankh Life Symbol" was delivered to the New Bedford police by Deborah and her father. Its purchase led to the indictment of St. James for sale, and possession with intent to sell, of obscene material in violation of Section 28A. On May 16, 1968, Margaret E. Rudolph purchased "Adult Movies Illustrated" from the defendant Grenier at Literature, Inc. She selected the magazine herself from a place at the rear of the store. As a result of this purchase, the defendant Grenier was indicted for sale of obscene material in violation of Section 28A, and Girard for possession with intent to sell of obscene material and for display for sale of sado-masochistic material to a child under eighteen. On May 16, 1968, John H. Dziuba selected the magazine "Naked Comics" from an open rack in Magazine World and purchased it from the defendant Dupont. This transaction led to the indictment of Dupont for sale of obscene material in violation of Section 28A, and an indictment of the defendant Saba for possession with intent to sell of obscene material in violation of Section 28A.

The materials in question contain for the most part photographs of nude or semi-nude men and women engaged in a variety of activities. "Esoteria" contains photographs of partially clothed models beating, strangling and whipping persons of the opposite sex. Its emphasis is on sado-masochistic activities, and includes some ten pages of "personal ads" for similar activity. "Shocker" also concentrates on sexual violence. It includes photos of a semi-nude female

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covered with lacerations and abrasions. Some photographs suggest lesbian sexual play. "Ankh Life Symbol" contains several photographs of stationary male and female models with their genital regions exposed, interspersed with articles on the life style of a nudist commune, nude psychotherapy, the origin of the zodiac, and the Catholic view of the birth control pill. "Naked Comics" consists of an article relating to the development of comics in newspapers, and two photographic comic strip sequences in which male and female genitalia are exposed. "Adult Movies Illustrated" contains photographs of scantily clad female models, females, being whipped, and lesbian sexual play.

The questions reported concern the validity of the court's denial of a motion to suppress evidence, the admission in evidence of the material seized, and whether findings of guilty on all indictments were warranted. These questions raise issues concerning the validity of a search warrant, the sufficiency of the indictments and evidence, the obscenity vel non of the materials involved and the constitutionality of Sections 28A and 30.

1. Our decision in Commonwealth v. Palladino, ante, 28 disposes of the convictions under Section 28A. There it was decided that a complaint, following the wording of Section 28A but failing to allege the defendant's knowledge of the obscene nature of the materials involved, an essential element of an offence under Section 28A (Demetropolos v. Commonwealth, 342 Mass. 658 ), was defective and could not support a conviction. Here, as in the Palladino case, none of the indictments involving Section 28A alleged that the defendants knew that the materials sold or possessed were obscene. Failure to charge the defendants with scienter in the indictments was fatal.

2. With regard to the indictments brought under Section 30, a different problem arises, namely, whether the Legislature may constitutionally exclude scienter as an element of a crime under Section 30. That section provides that "[i]n a prosecution under this section it shall not be necessary to prove that the defendant has read, or knows of the offensive description or picture contained in the literature involved."

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The question raised thus differs from the issue presented in Demetropolos v. Commonwealth, 342 Mass. 658 , and Commonwealth v. Corey, 351 Mass. 331 , where the Legislature's failure to specify whether or not scienter was an element of the offences created by Sections 28 and 28A permitted us to construe these statutes as including scienter in order to save their constitutionality. Here that cannot be done, for the Legislature has specifically excluded scienter as an element of the crime. The question whether the Legislature could constitutionally dispense with scienter as an element of an offence is governed by our decision in Commonwealth v. Corey, supra, at 334. As we stated there, "Absent the scienter requirement, booksellers, unable to familiarize themselves with all the material on their shelves, would tend to restrict sales to minors to the relatively few books of which they had some knowledge of the contents or character. The result would be an impediment to the sale to minors not only of unprotected matter but also of that which is constitutionally protected." With Section 30, the threat to First Amendment interests is even greater. The statute imposes absolute liability on the sale, rent, display for sale, loan, gift, or offer of sale of any "written material which contains in its text . . . a fictional description or illustration of sadism, masochism, sexual perversion, bestiality or lust, or of the physical torture of human beings." A father who gives his sixteen year old son a novel which, unknown to him, contains a description, however brief, of human torture would violate the statute. To avoid prosecutions, a bookseller would have to examine minutely every novel he displays for sale or sells to a child under eighteen. Such a restriction would obstruct the flow of clearly protected expression to children under eighteen, and is an impermissible exercise of the legislative power.

3. It follows that all of the convictions (those under Section 28A and those under Section 30) must be set aside, and the questions 3 to 7 [Note 3] inclusive reported by the judge must be answered in

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the negative. The other questions need not be answered. The cases are remanded to the Superior Court for disposition in conformity with this opinion.

So ordered.

FOOTNOTES

[Note 1] "Whoever . . . sells or distributes a pamphlet . . . printed paper, . . . or other thing which is obscene, indecent or impure, or an obscene, indecent or impure print, picture, figure, image or description . . . or has in his possession any such pamphlet . . . printed paper . . . obscene, indecent or impure print, picture, figure, image or other thing, for the purpose of sale, exhibition, loan or circulation . . .."

[Note 2] "Whoever sells, rents, displays for sale, loans, gives or distributes to a child under eighteen years of age or offers for sale to such a child any pamphlet, magazine, comic book, picture, picture book . . . or other printed or written material which contains in its text, title, illustrations, or accompanying advertisements, a fictional description or illustration of sadism, masochism, sexual perversion, bestiality or lust, or of the physical torture of human beings, shall be punished by imprisonment for not more than two years or by a fine of not less than one hundred nor more than one thousand dollars. In a prosecution under this section it shall not be necessary to prove that the defendant has read, or knows of the offensive description or picture contained in the literature involved" (emphasis supplied).

[Note 3] These questions were directed to whether the convictions on each indictment were warranted.