Dissenting Opinion
DeBruler, J.This case arises out of a sale of a weekly newspaper entitled “Screw” to an adult which took place inside a bookstore. There is no evidence of pandering or of thrusting such material on an unwilling or unsuspecting public, or the involvement of juveniles. Quite the contrary, this store obviously attempted to shield its products from public view (curtains on the windows), to discourage the casual browsers (entrance fee requirements), and specifically prohibited juveniles from entering the store.
The appellant raises four objections to this conviction. The first objection is that the Indiana obscenity statute (I.C. 1971, *21835-30-10-1, being Burns § 10-2803), is unconstitutional on its face. This argument relies in part on an historical analysis to demonstrate that the statute could be read in an overly restrictive or arbitrary way. However, reading the statute as we must, to incorporate the interpretations of the Supreme Court of the United States in this area, it is clear that statute is constitution on its face. Roth v. U. S. (1957), 354 U. S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498. See also Henley v. Wise, 303 F. Supp. 62 (N.D. Ind., Hammond Div., 1969).
Appellant’s second argument is that the statute in question is unconstitutional as applied. Appellant takes the position that under the Supreme Court’s rulings in Redrup v. New York (1967), 386 U. S. 767, 87 S. Ct. 1414, 18 L. Ed. 2d 515, and Stanley v. Georgia (1969), 394 U. S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542, a general prohibition of the distribution of obscene materials between consenting adults is unconstitutional, and that any prohibition must meet the limited Redrup tests, which concern themselves with specific state interests which override the interests protected by the First Amendment. This argument, although it has considerable merit as a general approach to this area, lacks constitutional support since the United States Supreme Court’s decision in U. S. v. Reidel (1971), 91 S. Ct. 1410. In that case the court stated that “[R]oth has squarely placed obscenity and its distribution outside the reach of the First Amendment and they remain there today.” Id. at 1413. Thus, there is no constitutional bar to the application of the statute in question to a “private” sale of obscene materials between adults.
The appellant’s third objection is that the periodical in question is not obscene according to constitutional standards. In considering this objection, we are called upon and cannot avoid the making of “an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.” Jacobellis v. Ohio (1964), 378 U. S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793.
*219I am in complete agreement with the rest of this Court that the periodical in question is vulgar trash representing verbal and pictorial pollution of the worst kind. However, the question before the Court is whether the publication is obscene in the constitutional sense, not in the layman’s sense. In deciding this question we are necessarily guided by the United States Supreme Court which has taken an active role in this sensitive constitutional area. A study of cases decided by the United States Supreme Court indicates that the struggle to arrive at a clear definition of obscenity has been much more difficult for the court than the actual application of that standard to specific instances. As a matter of fact, the cases in which the United States Supreme Court has allowed a conviction to stand on the basis that the material is obscene, without more, are virtually non-existent. To put the United States Supreme Court’s decisions in this area in a proper context, it will be necessary to briefly discuss the development of the definition of obscenity.
The starting point for determining the proper definition of obscenity is, of course, Roth v. U. S., supra, recently reaffirmed in U. S. v. Reidel, supra. The Roth case clearly held that “obscenity” was not protected by the First and Fourteenth Amendments to the Constitution of the United States, a position which had been generally accepted prior to Roth. As the Court put it in Roth:
“All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guarantees, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.” 854 U. S. at 484.
The Roth case of course re-affirmed the fundamental importance of First Amendment protection in this area and concluded that:
*220“It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.” 354 U. S. at 488.
Roth rejected the well-known Hicklin test for obscenity as being overboard, see Regina, v. Hicklin (1868), LR 3 QB 360, and substituted a much narrower test for obscenity, that is, “whether to the average person, applying community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” 354 U. S. at 489.
The Court commented on the place of sex in the First Amendment protection as follows:
“However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. . . . Sex, a great and mysterious mature force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and concern. As to all such problems, this Court said in Thornhill v. State of Alabama, 310 U. S. 88, 101-102, 60 S. Ct. 736, 744, 84 L. Ed. 1093:
“ ‘The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.’ ” (Original emphasis.)
354 U. S. at 487-488.
In distinguishing a protected interest in sex from a non-protected interest in obscenity, the Court stated that:
“We perceive no significant difference between the meaning of obscenity developed in the case law and the definition of the A.L.I. Model Penal Code, §207.10(2) (Tent. Draft no. 6, 1957), viz:
“ ‘. . . A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description as representation of such matters. . . .’ ”
354 U. S. at 487, fn. 20.
*221Moreover, this restrictive test of what material will be deemed outside the protection of the First Amendment has been narrowed even further in decisions subsequent to Roth. In Manual Enterprises, Inc. v. Day (1962), 370 U. S. 478, 82 S. Ct. 1432, 8 L. Ed. 2d 639, the Court reversed an obscenity conviction under 18 U.S.C.A. § 1461, in a case involving magazines which all parties admitted were published primarily for homosexuals to appeal to the “prurient interest” of that group and which had no other merit of any kind. The Court held that representation of male nudes was not “patently offensive,” that is that “these magazines cannot be deemed so offensive on their face as to affront current commuity standards of decency,” 370 U. S. at 482, and that regardless of their obvious prurient appeal to the readers, unless they were also patently offensive in this sense, their prohibition could not be squared with First Amendment freedoms. Justice Harlan, speaking for the Court pointed out that:
“The Court of Appeals was mistaken in considering that Roth made ‘prurient interest’ appeal the sole test of obscenity. Reading that case as dispensing with the requisite of patently offensive portrayal would be not only inconsistent with § 1461 and its common law background, but out of keeping with Roth’s evidence purpose to tighten obscenity standards.” 370 U. S. at 487.
Later, in Jacobellis v. Ohio, supra, the Court reiterated its recognition in Roth that material can be excluded from constitutional protection only if it is found to be utterly without redeeming social importance. Finally, in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure v. Attorney General of Massachusetts (1966), 383 U. S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1, the Court stated what has become the dominant, if not majority, standard for distinguishing material which can be constitutionally prohibited as obscene. In this case, the Court reversed the Supreme Judicial Court of Massachusetts holding that the book, commonly known as “Fanny Hill”, was obscene. The Court held that the follow*222ing three elements were independently necessary and jointly sufficient conditions for the prohibition of materials as obscene :
“(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representations of sexual matters; and (c) the material is utterly without redeeming social value.” 383 U. S. at 418.
And the Court further stated that:
“The Supreme Judicial Court erred in holding that a book need not be ‘unqualifically worthless before it can be deemed obscene.’ A book can not be proscribed unless it is found to be utterly without redeeming social value. This is so even though the book is found to possess the requisite prurient appeal and to be patently offensive. Each of the three federal constitutional criteria is to be applied independently; the social value of the book can neither be weighed against nor cancelled by its prurient appeal or patent offensiveness.” (Original emphasis.) 383 U. S. at 419.
The Court thus explicitly added a third test which had been implicit in its previous decisions, and held that even if a work appealed to the prurient interest, and was patently offensive, it might still claim constitutional protection if it had even a modicum of social value.
The historical development of the U. S. Supreme Court’s test for obscenity thus demostrates a continuing delimitation of materials deemed obscene and therefore outside the limits of constitutional protection. At the same time, we note a corollary expansion of the standard to include the actions of the seller in relation to the material as opposed to considering the material alone. Actions in this area may well speak louder than words. See Ginzburg v. U. S. (1966), 383 U. S. 463, 86 S. Ct. 942, 16 L. Ed. 2d 31.
The historical development of this obscenity standard also demonstrates a great deal of confusion and difference in opin*223ion regarding the meaning of the test. With nothing to guide us but the verbal definition we would be but little advanced in an attempt to make the necessary constitutional judgment in this area. Fortunately for our decision, however, the Supreme Court has not enunciated this linguistic standard and absolved itself of further dealings in this area. On the contrary, as pointed out above, that Court has taken the lead in applying the test and has involved itself in “making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.” 378 U. S. at 190.
In looking to specific applications of this announced standard as set forth in Memoirs, supra, we are guided by Redrup, supra, the most important recent case (in the sense of its practical effect on the law) in this area. In Redrup, the Court considered three separate state convictions under obscenity laws, the first two which were similar to the case before us. In the first case under Redrup, a plainclothes officer bought two paperback books (“Lust Pool” and “Shame Agent”) from a newstand in New York City. In the second case, a citizen purchased two magazines (“High Heels” and “Spree”) from a newstand-bookstore in Kentucky. Both sellers were convicted under state laws prohibiting the selling of obscene materials. The third case concerned a decision by the Supreme Court of Arkansas upholding a declaratory judgment that certain magazines were obscene.
The United States Supreme Court originally granted certiorari on these three cases to decide particularized questions of law upon the hypothesis that the material was in fact obscene. The first two cases attacked the lack of a “Scienter” requirement on the sale by the clerks, and the third case was an attack on “vagueness” and “prior restraint” in the Arkansas procedure. See Redrup v. New York, supra; Austin v. Kentucky (1966), 384 U. S. 916, 86 S. Ct. 1362, 16 L. Ed. 2d 438; Gent v. Arkansas (1966), 384 U. S. 937, 86 S. Ct. 1454, 16 L. Ed. 2d 537.
*224However, after granting certiorari on the assumption that the materials were in fact obscene, and without benefit of brief or oral argument on the point, the Court in a per curiam decision joined by seven out of nine justices, decided that the original hypothesis that the materials in question were obscene was invalid. The Court, therefore, went to the merits of the obscenity question in each case and held that none of the material was obscene.
The decision in Redrwp strongly implied that the Court had decided to take yet another giant step in removing itself from the role of censor in the area when the sale was between consenting adults. As the Court pointed out:
“In none of the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. Commonwealth of Massachusetts, 321 U. S. 158, 64 S. Ct. 438, 88 L. Ed. 645; cf. Butler v. State of Michigan, 352 U. S. 380, 77 S. Ct. 524, 1 L. Ed. 2d 412. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. City of Alexandria, 341 U. S. 622, 71 S. Ct. 920, 95 L. Ed. 1233; Public Utilities Comm’n of District of Columbia v. Polak, 343 U. S. 451, 72 S. Ct. 813, 96 L. Ed. 1068. And in none was there evidence of the sort of ‘pandering5 which the Court found significant in Ginzburg v. United States, 383 U. S. 463, 86 S. Ct. 942, 16 L. Ed. 2d 31.55 386 U. S. at 769.
The decision in Redrwp went on to discuss the varying approaches taken by different justices, as follows:
“Two members of the Court have consistently adhered to the view that a State is utterly without power to suppress, control or punish the distribution of any writings or pictures upon the ground of their ‘obscenity5. A third has held to the opinion that a State’s power in this area is narrowly limited to a distinct and clearly identifiable class of material. Others have subscribed to a not dissimilar standard, holding that a State may not constitutionally inhibit the distribution of literary material as obscene unless ‘(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently *225offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value,’ emphasizing that the ‘three elements must coalesce,’ and that no such material can ‘be proscribed unless it is found to be utterly without redeeming social value.’ A Book Named ‘John Clelands’ Memoirs of a Woman of Pleasure’ v. Attorney General of Com. of Massachusetts, 383 U. S. 413, 418-19, 86 S. Ct. 975, 977-978. Another Justice has not viewed the ‘social value’ elements as an independent factor in the judgment of obscenity. Id., at 46-462, 86 S. Ct. 975, 998-999 (dissenting opinion).
“Whichever of these constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand.” 386 U. S. 770.
The clear implication of this decision was that unless there was evidence of a concern for juveniles, or of an assault on individual privacy, or of pandering, the Court would not exclude any material from constitutional protection. Since the Redrup decision, the United States Supreme Court has strengthened this implication in its per curiam reversals of obscenity convictions. The Supreme Court has granted certiorari in at least twenty-nine cases after Redrup, and in twenty-eight of those cases has reversed obscenity convictions, citing Redrup in twenty-six of the cases.1
The one affirmance came in the case of Landau v. Fording (1966), 54 Cal. Rep. 177, aff’m in 388 U. S. 456 (1967), in which the lower court found a film by Jean Genet obscene. The Court found that the film contained explicit and vivid scenes of facts of masturbation, oral compulation, sodomy, voyeurism, nudity, sadism and masochism, and that it had been commercially exploited applying the Ginzburg test.
On examination the per curiam reversals indicate that the lower courts, both federal and state, have consistently misapplied the Supreme Court’s test. For example, in Dykema *226v. Bloss (1969), 17 Mich. App. 318, 169 N. W. 2d 367, the court of appeals of Michigan held fifteen magazines obscene which showed (1) women in enticing and lewd positions; (2) photographs of the pubic areas which accentuated and over-accentuated those areas; (3) photographs of women removing their final garment; and, (4) men with erections or partial erections. Presiding Judge Levin’s dissent in this case foreshadowed the United States Supreme Court’s reversal of the conviction in Bloss v. Dykema (1970), 398 U. S. 278, 90 S. Ct. 1727, 26 L. Ed. 2d 230. As Judge Levin stated:
“I am in entire agreement that the seized maps are vulgar, tawdry and unpleasant. The question before us is not whether the odious magazines are obscene in the ordinary sense of the word. They clearly are — but whether they are obscene in the constitutional sense. The phrase ‘obscene in the constitutional sense’ is a term of art coined by the United States Supreme Court [citing Redrup] and, to the extent it has defined that term, its definition is controlling on us. Neither my personal opinion nor, I may respectfully add, the opinions of my colleagues is relevant where there is a controlling opinion from the United States Supreme Court.
“The United States Supreme Court has undertaken the exposition and, control of the development of this area of law. It has made very clear that only in extraordinary cases will publications be deemed obscene in the constitutional sense.” 17 Mich. App. at 340.
In State v. Hoyt (1970), 286 Minn. 92, 174 N. W. 2d 700, the Supreme Court of Minnesota upheld an obscenity conviction charging the sale of obscene books. The court found that the theme of each book was pointless “save as it serves to relate the characters to repeated accounts of lewd and degrading episodes. They deal with filth for the sake of filth.” Id. at 95. Justice Otis in a long and well-written dissent would have reversed on the authority of Redrup, stating that:
“A careful reading of the cases cited leads me to the inescapable conclusion that the books here for consideration cannot be held criminally obscene unless the state has proved beyond a reasonable doubt one or more of the significant *227elements to which the court made reference in Eedrup. In other words, the test seems to be whether or not the sale or distribution was directed at juveniles; whether it was an obtrusive assault on individual privacy; and whether there was evidence of pandering” 286 Minn, at 109-110.
The United States Supreme Court did reverse this conviction, citing Redrup. Hoyt v. Minnesota (1970), 399 U. S. 524, 90 S. Ct. 2241, 26 L. Ed. 2d 782.
In another example, in upholding an obscenity conviction, the Supreme Court of Tennessee had this to say:
“This film, considered as a whole, not only predominantly appeals to the prurient interest, in fact it has no other possible appeal. If this film is not patently offensive to the public or does not go substantially beyond customary limits of candor in dealing with sex, then we do not think it possible to make such a film.” Robert Arthur Management Corp. v. State (1967), 220 Tenn. 101, 112-113, 414 S. W. 2d 638.
The Supreme Court reversed this opinion citing Redrup, Robert Arthur Management Corp. v. Tennessee, ex rel. Canale (1968), 389 U. S. 578, 88 S. Ct. 691, 19 L. Ed. 2d 777.
In Books, Inc. v. U. S., 358 F. 2d 935 (1st Cir. 1966), Judge Wyzanski upheld an obscenity conviction of the book “Lust Job,” finding that it was:
“a tale exclusively devoted to sexual adventures of its principal characters. Adulteries, seductions, and orgies are the only events of importance. The contacts described include not only sexual intercourses, but sodomy and other perversions.” 358 F. 2d at 936.
This conviction was also reversed, citing Redrup. Books, Inc. v. U. S. (1967), 388 U. S. 449, 87 S. Ct. 2098, 18 L. Ed. 2d 1311.
In U. S. v. 392 Copies of a Magazine entitled “Exclusive,” 373 F. 2d 633 (4th Cir. 1967), the Fourth Circuit upheld the validity of a confiscation and destruction order concerning ob*228scene material. The magazine “Exclusive” was described as follows:
“Exclusive is a collection of photographs of young women. In most of them, long stockings and garter belts are employed to frame the pubic area and to focus attention upon it. A suggestion of masochism is sought by the use in many of the pictures of chains binding the model’s wrists and ankles. Some of the seated models, squarely facing the camera, have their knees and legs wide-spread in order to reveal the genital area in its entirety. In one of the pictures, all of these things are combined: The model, clad only in a framing black garter belt and black stockings is chained to a chair upon which she is seated, facing the camera, with one knee elevated and both spread wide.” 373 F. 2d at 634.
The Supreme Court reversed the conviction, again citing Redrup. Central Magazine Sales, Ltd. v. U. S. (1967), 389 U. S. 50, 88 S. Ct. 235, 19 L. Ed. 2d 49.
These Supreme Court reversals have, of course, influenced the lower court’s decisions in this area. Several lower courts have interpreted the Redrwp decision to limit state control of obscenity to the three areas of juveniles, invasion of privacy or pandering. See, for example, U. S. v. 4400 Copies of Magazines, etc., 276 F. Supp. 903 (D. Md. 1967); People v. Stabile, et al. (1969), 296 N. Y. S. 2d 815, 58 Misc. 2d 905; Wayne Co. Prosecutor v. Doerfler (1968), 14 Mich. App. 428, 165 N. W. 2d 648; State v. J. L. Marshall News Co. (1967), 13 Ohio Misc. 60, 232 N. E. 2d 435. Others have reversed on the grounds that the material supporting the conviction cannot be deemed obscene when compared with the Supreme Court’s application of the test. Hunt v. Keriakos, 428 F. 2d 606 (1st Cir. 1970); U. S. v. A Motion Picture Film, etc., 404 F. 2d 196 (2nd Cir. 1968); Pinkus v. Pitchess, 429 F. 2d 416 (9th Cir. 1970); Commonwealth v. Dell Publications (1967), 427 Pa. 189, 233 A. 2d 840. Either one of these interpretations would be sufficient to justify a reversal in the instant case.
The majority indicates that the use of expert witnesses in this case was improper because experts cannot properly be *229called in to give an opinion on the ultimate fact in issue in a case. However, both experts called by the defense in this case carefully stated the tests for obscenity as they understood them, and carefully limited their testimony to those factual areas for which their background qualified them as experts. They both testified that the magazine, in their opinion, did not appeal to the prurient interest, did have social value, and did not exceed ordinary limits of candor. Such testimony is clearly relevant to the issues in this case. As Justice Frankfurter said, concurring in Smith v. Calif. (1959), 361 U. S. 147, 80 S. Ct. 215, 4 L. Ed. 2d 205, cited by appellant:
“Unless we disbelieve that the literary, psychological or moral standards of a community can be made fruitful and illuminating subjects of inquiry by those who give their life to such inquiries, it was violative of ‘due process’ to exclude the constitutionality relevant evidence profferd in this case.” 361 U. S. at 166.
See also 5 A. L. R. 3d 1158, 1194-1195, A. L. I., Model Penal Code, Proposed Official Draft (1962), §251.4(4).
Note. — Reported in 273 N. E. 2d 842.
. See “Report of the Commission on Obscenity & Pornography” (1970) , p. 31, fn. 105, for a list of these cases. Also see Childs v. Oregon (1971) , 91 S. Ct. 1248, and Bloss v. Michigan (1971), 91 S. Ct. 1615.