Orito v. State ( 1972 )

Wilkie, J.

(concurring). In my concurring opinion in Court,¹ I stated that:

“The determination of whether a particular publication is obscene is a mixed question of fact and constitutional law on which an appellate court is obliged to make an independent determination. We cannot escape this responsibility here.”

In my opinion this court must independently review the materials involved in this case to determine whether or not they are obscene. This is a matter of federal constitutional law governed by the decisions of the Supreme Court of the United States. That court in Jacobellis v. Ohio,²- and this term in Robe v. Washington,³ has made clear that an independent determination of obscenity must be made by the reviewing appellate court.

Applying the threefold test stated in Court and reiterated in the majority opinion here, I have no hesitation, after making an independent determination, in concluding that the publication here is obscene and that the conviction should therefore be affirmed. This magazine has no other purpose than to sexually arouse the reader; it manifestly appeals to such a person’s prurient interest in sex.

The magazine in question consists only of a series of photographs of women standing, sitting, or lying, entirely or mostly unclad, and in gross positions where there is no question but their appeal is solely to the prurient interests of the reader. There is no attempt at art, literature, or social comment. These photographs are totally without social redeeming value and offend the community standards whether considered locally or nationally.

Since this magazine is obscene it is not entitled to the protection of the federal constitution. If any error took place in the trial court it is obviated by my independent review of the materials in question.

1 Court v. State (1971), 51 Wis. 2d 683, 711, 188 N. W. 2d 475.

2 (1964), 378 U. S. 184, 84 Sup. Ct. 1676, 12 L. Ed. 2d 793.

3 (1972), 405 U. S. 313, 92 Sup. Ct. 993, 31 L. Ed. 2d 258.