(dissenting).
I respectfully dissent from the majority opinion. Much too often in cases of this type the well-considered verdict of the jury is summarily set aside.
The testimony of Detective Eison neither added to nor took away from the other evidence, and even if the admission of his testimony were error it could not have been prejudicial to appellants. Considering the fact that the sound track of the film consisted of only a negligible amount of dialogue and musical accompaniment, the video tape alone would have been sufficient to support the conviction. In movies such as the one involved in this case where no plot of any significance is discernible and the film is merely a vehicle for the exhibition of repeated scenes of explicit sex, it is my opinion that blind adherence to Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) and subsequent cases is not required. As advanced by the majority, Roth stands primarily for the requirement that a work challenged as obscene be viewed as a whole, i. e., that part(s) thereof may not be lifted out of context and judged separately from the whole.
The 32-minute video tape challenged herein amounted to substantially all of what was contained in the 42-minute movie. In State v. J-R Distributors, Inc., 82 Wash.2d 584, 512 P.2d 1049 (1973) the Washington court in a similar obscenity case held that a video tape of eight films was admissible. In J-R Distributors, Inc., the video tape consisted of “segments” spliced together to reproduce the eight films as nearly as possible in their entirety. The actual films had been in color and *303projected at 24 frames per second, but the video tape was in black and white and projected at 18 frames per second. Even considering these differences it is seen that the video tape in J-R Distributors, Inc. was a reproduction which was substantially the same as the film and thus was admissible. In the instant case the admission of the video tape into evidence was permissible under like reasoning.
The fair and equitable administration of justice does not require that defendants in a criminal prosecution be guaranteed an error-free trial. In Abernathy v. Commonwealth, Ky., 439 S.W.2d 949 (1969), this court said at page 952:
" . . . [I]f upon a consideration of the whole case this court does not believe there is a substantial possibility that the result would have been any different, the irregularity will be held nonprejudicial.”
For the foregoing reasons I would affirm the judgment.