Benjamin v. United States

74 A.2d 64 (1950)

BENJAMIN v. UNITED STATES.

No. 927.

Municipal Court of Appeals for the District of Columbia.

Argued June 7, 1950.

Decided June 20, 1950.

Joseph Forer, Washington, D. C., David Rein, Washington, D. C., on the brief, for appellant.

Joseph A. Sommer, Assistant United States Attorney, Washington, D. C., with whom George Morris Fay, United States Attorney, and Joseph M. Howard, Assistant United States Attorney, Washington, D. C., on the brief, for appellee.

Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.

HOOD, Associate Judge.

Appellant, owner of a newsstand, was convicted on a charge of knowingly having in his possession with intent to exhibit and sell, and of selling, obscene, lewd and indecent pictures. Code 1940, 22-2001. The chief question at trial and here is whether the pictures (photographs), concededly taken from appellant's place of business and there offered for sale, are obscene, lewd and indecent within the meaning of the statute.

Appellant's counsel has presented an interesting and able argument to the effect that obscenity has no fixed meaning and that its meaning varies in different communities and at different periods; that the *65 modern test of obscenity is whether the subject of inquiry "goes beyond the extremes of community tolerance, as those limits are delineated by the mores of the community"; and that the pictures in question do not exceed the extremes of community tolerance existing today in the City of Washington.

Without attempting to describe the pictures, we are of opinion that they are of such a nature as to sustain a finding of guilt by any recognized standard, including the one advanced by appellant.

Appellant also argues that the statute, as construed and interpreted by the trial court, contravenes the First and Fifth Amendments to the Constitution. We find no merit in this contention.

Affirmed.