(concurring).
Defendant’s concession, during oral argument, that for the purpose of this appeal it may be admitted that the two books under scrutiny (Exhibits 1 and 3) were obscene, serves to eliminate the issue of “contemporary community standards.” With commendable candor counsel announced that this was done in order not to obscure the primary question of the element of scienter. In this context we do not treat this concession as one of guilty knowledge on the part of defendant within the terms of 18 U.S.C. A. § 1462.
We are left, therefore, with the important question of whether defendant, at the time he took these obscene books from the carrier in interstate commerce, knew that the books were obscene. As in all cases involving guilty knowledge, the determination of a person’s state of mind under a given set of circumstances is a difficult and close question. We are here neither dealing with the validity of a statute or an ordinance,1 nor are we concerned with determining the character of the subject matter of the publications in question.2 We are passing on *634a question of sufficiency of evidence to take a case to a jury for its determination of the issue of intent.
It is well settled that jury verdicts cannot be based on surmise and speculation; that conjecture and suspicion cannot take over where proof fails; and that verdicts based upon such nebulous grounds cannot be permitted to stand. These principles need no supporting citations. The question then arises whether the relevant evidence in this case on the issue of guilty knowledge is so minimal in character that we must say the jury was reduced to speculation and conjecture in arriving at its verdict of guilt.
The applicable rule is stated by the Supreme Court of the United States in Morissette v. United States, 1952, 342 U.S. 246, at page 274, 72 S.Ct. 240, at page 255, 96 L.Ed. 288, where Mr. Justice Jackson stated: “Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury.” In that case the Court reversed a conviction because the trial court invaded the province of the jury through erroneous instructions on this issue.
In the case at bar, it is significant that defendant makes no charge that the jury was improperly instructed. Indeed, an examination of the instructions given by the trial court on the issue of intent demonstrates that the jury was fully and correctly instructed on this question.
A review of the record in this case, “taking the view most favorable to the Government,” satisfies me that there was sufficient testimony from which the jury might properly conclude that defendant was aware of the contents of the books. Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680. The fact that the question of proof might have been close and that the jury could have determined it in favor of defendant, as it did on Count II, is only indicative that the evidence was of such character as to require its evaluation by the jury. It is not our appellate function to substitute our judgment for that of the jury under such circumstances.
We are not presented with a record here “that is entirely lacking in evidence to support any of the charges,” as was determined by the Supreme Court in Thompson v. City of Louisville, 80 S.Ct. 624.
We are concerned neither with a constitutional question of censorship nor with the power of the Government to define obscenity. Within the limited scope of our review of the narrow factual question before us, I agree with the majority opinion that the judgment of the district court must be affirmed.
. Smith v. People of State of California, 1959, 361 U.S. 147, 80 S.Ct. 215, 4 L. Ed.2d 205; Roth v. United States, 1957, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498.
. Rosen v. United States, 1896, 161 U.S. 29, 16 S.Ct. 434, 40 L.Ed. 606; .United States v. Padell, 2 Cir., 1958, 262 F.2d 357, certiorari denied 359 U.S. 942, 79 S.Ct. 723, 3 L.Ed.2d 676.
In Padell, the court aptly refers to such literary trash as “dreary pornography.”