Edward E. Petrillo, Erie, for appellant.
Damian McLaughlin, District Attorney, Erie, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 167 Pa. Super. Page 612]
The defendant was convicted and sentenced in the court below for a violation of section 524 of the Penal Code of 1939, P.L. 872, 18 P.S. § 4524, making one guilty of a misdemeanor who 'sells, lends, distributes, * * * offers to sell, lend or distribute * * * any obscene, lewd, lascivious, filthy, indecent or disgusting book, magazine, pamphlet, newspaper * * * or any written or printed matter of an indecent character'.
That the defendant published the article which forms the basis of this prosecution is undisputed. He, however, contends that the judgment of the court below should be reversed and his conviction set aside for the following reasons: (1) the writing in question is not in fact obscene; (2) the statute under which the present prosecution was brought is, as applied to this case, violative of the free speech and free press provisions of the Fourteenth Amendment to the Federal Constitution; (3) the court below erred in refusing to admit in evidence various magazine articles and novels offered by him; and (4) the court below erred in refusing to withdraw a juror and continue the case by reason of a remark made by the district attorney in his closing address to the jury. In our opinion, none of these contentions can be sustained.
(1) The case of Com. v. New, 142 Pa. Super. 358, 16 A.2d 437, which the defendant does not attempt
[ 167 Pa. Super. Page 613]
to distinguish, would appear to dispose of his contention that the writing in question is not obscene. In that case, which also was a prosecution under section 524, the evidence was uncontradicted that the defendant sold and distributed the magazine then in question, copies of which were offered in evidence. The jury returned a verdict of guilty and the defendant appealed to this Court, contending that the conviction should not be permitted to stand because the writing was not in fact obscene, filthy or indecent. In disposing of this contention and affirming the judgment of the court below, we said, 142 Pa. Super. at page 360, 16 A.2d at page 438: 'The test for obscenity most frequently laid down seems to be whether the writing would tend to deprave the morals of those into whose hands the publication might fall by suggesting lewd thoughts and exciting sensual desires [citing cases]. * * * The exact point at which language becomes obscene or filthy cannot be determined by any standard test, but it is rather a matter of opinion to be ascertained by the use of ordinary common sense and reason, taking into account the circumstances in which the matter is employed.'
In the present case, copies of the article in question were in evidence, the trial judge in his charge gave the jury the test quoted from the New case, and by its verdict the jury found as a fact that the article in question was obscene. Under the same circumstances we declined to vacate such a finding in the New case and have been given no compelling reason to do so in the present case.
(2) In view of the finding that the article is obscene, there is no merit in defendant's contention that his conviction violates the Federal Constitution. The right of the several states to prevent and punish the publication of obscene writings cannot successfully be disputed. 'Allowing the ...