dissenting:
The construction of the statute by the trial judge and by the majority of the panel of this Court will permit a film to depict in a patently offensive way sexual conduct which appeals to the prurient interest in sex, if the evidence tends to support a finding that the film contains some serious artistic or literary value.
Much of the testimony in this case involved the artistic and expert use of the camera. Anyone viewing the film would agree that the cameramen were expert in clearly and vividly recording the varied and numerous sex acts. However expertly done, the scenes were patently offensive portrayals of sexual conduct. There were two or three brief scenes of beautiful countryside, but they were merely interludes between the sex acts, which were obviously the main theme of the film.
If the statute means what the trial judge and the majority of this panel says it means, it amounts to no prohibition against obscenity. A sex orgy of any kind will be permitted to be depicted so long as the camera is expertly and artistically used, and the orgy is interrupted long enough to have a passage from Keats, Tennyson, Browning, or Shakespeare read, or a pictureesque view of the ocean or mountains flashed across the screen. If the legislators intended to permit the public showing of a film of the kind involved in this case, I do not believe it would have bothered to enact a prohibitory statute of any kind.
I think this Court should look at the real issue involved. Are the artistic and literary phases of the film inserted therein merely as a vehicle upon which to portray patently offensive scenes of sexual intercourse, normal and perverted, anal and oral?
The trial judge seems to have felt bound by the testimony of “experts” who believed the film to contain serious artistic *745and literary value. I do not feel that the trial or appellate courts are bound by such “expert” testimony with respect to pictures, motion pictures, or printed matter. The courts are not required to be blind and unfeeling. The trial court and the appellate courts can view pictures, motion pictures, or printed matter to determine whether the sexual conduct portrayed therein is patently offensive and whether it contains bona fide, serious literary or artistic value.
No court should undertake to pass upon a question of this nature without an actual court viewing of the material involved so that it can exercise its judgment upon patently offensive sexual conduct and serious artistic or literary value. This panel of the Court has viewed the entire film. It is my understanding that my brethren agree with me that the film depicts in a patently offensive way portrayals of actual sexual intercourse, normal and perverted, anal and oral, and a lewd exhibition of uncovered genitals in the context of masturbation. However, because of the difference in our interpretation of the statute, and because of the failure of the solicitor to make proper exceptions, they feel compelled to affirm.
I vote to reverse.