Appeal, No. 1, Feb. T., 1958, from judgment of Court of Quarter Sessions of Lackawanna County, Dec. T., 1956, No. 8, in case of Commonwealth of Pennsylvania v. Martin Blumenstein. Judgment affirmed.
Max Rosenn, with him William P. Farrell, James B. Gitlitz, and Rosenn, Jenkins & Greenwald, for appellant.
Ralph P. Needle, Assistant District Attorney, with him Carlon M. O'Malley, District Attorney, for appellee.
Blank, Rudenko & Klaus, submitted a brief, under Rule 46, for American Civil Liberties Union.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 184 Pa. Super. Page 84]
Martin Blumenstein was indicted by the grand jury in Lackawanna County on a charge of violating Section 528 of The Penal Code,*fn1 which reads as follows: "Whoever gives or participates in, or being the owner of any premises, or having control thereof, permits within or on said premises, any dramatic, theatrical, operatic, or vaudeville exhibition, or the exhibition of fixed or moving pictures, of a lascivious, sacrilegious,
[ 184 Pa. Super. Page 85]
obscene, indecent, or immoral nature and character, or such as might tend to corrupt morals, is guilty of a misdemeanor ..." After a trial before Judge EAGEN without a jury, Blumenstein was adjudged guilty and sentence was imposed. This appeal followed.
The record discloses that Blumenstein was the manager of the Ideal Drive-In Theatre in Greenfield Township, Lackawanna County. On October 12, 1956, pursuant to instructions from the district attorney, three state policemen attended the theatre. After viewing the showing of a film entitled "Uncover Girls", they closed the theatre, confiscated the film, and arrested Blumenstein. The uncut version actually exhibited had previously been refused approval by the Pennsylvania State Board of Censors.*fn2 Two reels of the confiscated film were exhibited in court. The trial judge found that they "depicted a series of dancing acts, which were definitely cheap, lewd, obscene and indecent".
Appellant's principal contention is that Section 528 of The Penal Code is unconstitutional. In support of this contention a brief was also filed by the American Civil Liberties Union under our Rule 46. Before considering this proposition, we will dispose of appellant's subordinate contention, which is: "The motion picture does ...