specially concurring:
I interpret both the majority and the dissenting opinions in this case as acknowledging that the trial court was in error in failing to instruct the jury that it should consider whether the material in question “is utterly without redeeming social value.” The difference in these two opinions however, is whether this acknowledged error was so prejudicial that it denied the defendant due process of law.
The dissenting opinion concludes that irrespective of which standard was used in the jury instruction, that it neither did nor could prejudice the defendant since the subject booklet was “hardcore pornography in its rawest form.” While I agree that the subject booklet is hardcore pornography in its rawest form, this characterization obfuscates the issue. I do not believe that we as a reviewing court may surmise what the verdict might have been had a proper instruction been given; nor may we affirm a proceeding which undercuts the import and effect of jury deliberations and findings by ruling that an erroneous statement of law is not prejudicial.
As our supreme court in People v. Jenkins (1977), 69 Ill. 2d 61, 370 N.E.2d 532, recently articulated:
“In our judge-and-jury system it is the duty of the court to inform the jury as to the law. We must assume that jurors do not fall short of their constitutional functions and follow the instructions of the trial judge. This assumption is part and parcel of our system. As Mr. Justice Holmes long ago observed: ‘But it must be assumed that the constitutional tribunal does its duty. * * *’ Aikens v. Wisconsin (1904), 195 U.S. 194, 206, 49 L. Ed. 154, 160, 25 S. Ct. 3, 6.”
In this regard, the court in Jenkins found that giving the jury contradictory instructions on an essential element in the case was prejudicial error, since it was the court’s duty, “* * ' to give the jury proper guidance, not to generate confusion ° °
This problem was also expressed in the recent case of Smith v. United States (1977), 431 U.S. 291, 52 L. Ed. 2d 324, 97 S. Ct. 1756, where the defendant was indicted under a Federal statute which prohibited the mailing of obscene materials; at the time of the mailings, the defendant’s activities did not violate a State law. Mr. Justice Blackmun and the majority emphasized:
“The fact that the jury might measure patent offensiveness against contemporary community standards does not mean, however, that juror discretion in this area is to go unchecked.” (431 U.S. 291, 301, 52 L. Ed. 2d 324, 335, 97 S. Ct. 1756, 1763-64.)
The court further commented upon the importance of properly instructing a jury wherein it stated:
“Our decision that contemporary community standards must be applied by juries in accordance with their own understanding of the tolerance of the average person in their community does not mean, as has been suggested, that obscenity convictions will be virtually unreviewable. We have stressed before that juries must be instructed properly, so that they consider the entire community and not simply their own subjective reactions, or the reactions of a sensitive or of a callous minority.” (Emphasis added.) (431 U.S. 291, 305, 52 L. Ed. 2d 324, 338, 97 S. Ct. 1756, 1766.)
The court further noted that “the work also must lack serious literary, artistic, political, or scientific value before a conviction will be upheld; this determination is particularly amenable to appellate review.” (431 U.S. 291, 305, 52 L. Ed. 2d 324, 338, 97 S. Ct. 1756, 1766.) It is therefore our duty to assure that the jurors are properly instructed in the law. This rule is harmonious with the notion that we may not speculate as to the juror’s findings and is consistent with the idea that juror discretion in the obscenity area should not go unchecked. Smith v. United States.
In addition, the case at bar depicts the procedural due process problem as it was raised by the defendant in another recent Supreme Court decision, Splawn v. California (1977), 431 U.S. 595, 52 L. Ed. 2d 606, 97 S. Ct. 1987. In Splawn, the defendant was convicted of the sale of two reels of obscene film. On appeal he contended that his conviction should be reversed:
# 6 because portions of the instructions given to the jury during his trial render his conviction violative of the First and Fourteenth Amendments. He claimfed] that the instruction allowed the jury to convict him even though it might otherwise have found the material in question to have been protected under the Miller standards.” (431 U.S. 595, 597, 52 L. Ed. 2d 606, 611, 97 S. Ct. 1987, 1989.)
Specifically, the defendant challenged the portion of the instruction which permitted the jury to consider the motives of commercial exploitation on the part of persons in the chain of distribution of the material other than himself. The instruction challenged by the defendant which the Court found to be valid read as follows:
“ ‘In determining the question of whether the allegedly obscene matter is utterly without redeeming social importance, you may consider the circumstances of sale and distribution, and particularly whether such circumstances indicate that the matter was being commercially exploited by the defendants for the sake of its prurient appeal. Such evidence is probative with respect to the nature of the matter and can justify the conclusion that the matter is utterly without redeeming social importance. The weight, if any, such evidence is entitled is a matter for you, the Jury, to determine.
* e o
Circumstances of production and dissemination are relevant to determining whether social importance claimed for material was in the circumstances pretense or reality. If you conclude that the purveyor’s sole emphasis is in the sexually provocative aspect of the publication, that fact can justify the conclusion that the matter is utterly without redeeming social importance.’ ” (431 U.S. 595, 597, 52 L. Ed. 2d 606, 612, 97 S. Ct. 1987, 1989-90.)
The court placed great reliance on Bouie v. Columbia (1964), 378 U.S. 347, 12 L. Ed. 2d 894, 84 S. Ct. 1697, which held that the elements of a statutory offense may not be so changed by judicial interpretation as to deny to accused defendants fair warning of the crime prohibited. In Splawn, the Court found that the instruction contained all the substantive elements of the offense including the element that the material was “utterly without redeeming social importance”; hence, the defendant was not denied due process of law. In the case at bar, the jury was not advised of a necessary element in the standards to be applied in determining whether a publication was obscene and as a result, the defendant was denied due process of law.
I thus concur that this cause should be reversed and remanded for a new trial.