(dissenting) — The majority has done a masterful job in organizing the discussion of these complex cases. While I am in agreement with much of what is said by the majority, there are two areas where new guidelines are applied that cause me great concern. Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973); United States v. Orito, 413 U.S. 139, 37 L. Ed. 2d 513, 93 S. Ct. 2674 (1973); Kaplan v. California, 413 U.S. 115, 37 L. Ed. 2d 492, 93 S. Ct. 2680 (1973); United States v. 12 200-Ft. Reels, 413 U.S. 123, 37 L. Ed. 2d 500, 93 S. Ct. 2665 (1973).
My concern is derived from what I believe is the need to obtain a clear statement by the proper legislative body of what descriptions and depictions are or are not obscene, and the need to enforce these standards in such a way that inconsistent verdicts will not be rendered on the same materials under the same law in the same jurisdiction.
First, the majority opinion fails to follow the United States Supreme Court’s requirement that the applicable state law specifically define the proscribed depiction or description of the offensive sexual conduct before an obscenity prosecution may succeed. Miller v. California, supra at 23, 24. The state obscenity law here to be applied fails to comply with the court’s required specificity in describing the acts that are forbidden and this court should not impose its own definition of obscenity on the statute in an effort to supply what is lacking.
Second, though the majority opinion holds the relevant “community standard” under the Roth-Miller guidelines (Roth v. United States, 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957)) is statewide, it fails to apply it in these cases. None of the prosecutions herein was measured by a statewide community standard. Inasmuch as our state stat*659ute does not comply with the specificity now required, and these cases fail to employ a state community standard, I would reverse the convictions.
The United States Supreme Court recognized in these recent obscenity decisions “the inherent dangers of undertaking to regulate any form of expression” and thus required that “[s]tate statutes designed to regulate obscene materials must be carefully limited.” Miller v. California, supra at 23, 24. The Supreme Court therefore found obscenity regulation must be confined solely to the depiction or description of sexual conduct, which must, in turn, be specifically defined by the applicable state law. In so ruling, the Supreme Court did not provide the regulatory scheme by judicial pronouncement but deemed it must await the “concrete legislative efforts” of the states.6 Miller v. California, supra at 25.
The majority of this court declines to await our state’s legislative effort to provide the now necessary concrete and specific definitions of obscenity. Rather, the majority proceeds, under a claim of statutory construction, to provide the demanded specificity of what is to be obscene, to a state statute which fails to so provide.
RCW 9.68.010(1) and (2),7 by simply prohibiting anything “which is obscene”, totally fails to provide for the *660specificity and fair notice in criminal statutes the Supreme Court now requires in the obscenity regulation area.
The United States Supreme Court acknowledged that a state obscenity statute may be limited “as written or construed.” Miller v. California, supra at 27. Yet, the majority here does not construe the word “obscene”, but gives it definition.
Our settled rules of statutory construction state that words in a statute are to be given their usual and ordinary meaning. Bixler v. Hille, 80 Wn.2d 668, 497 P.2d 594 (1972); Rena-Ware Distribs., Inc. v. State, 77 Wn.2d 514, 463 P.2d 622 (1970). In defining ambiguous statutory language we must determine the legislative intent in order to give it effect. Champion v. Shoreline School Dist. 412, 81 Wn.2d 672, 504 P.2d 304 (1972); In re Estate of Bracken, 56 Wn.2d 17, 351 P.2d 151 (1960). However, in this area of law which the Supreme Court characterizes as “the intractable obscenity problem” and is seeking “to formulate standards more concrete than those in the past” we should recognize the futility in judicially defining the word “obscene” and leave this to a clear expression by the people through the legislative process. Miller v. California, supra at 20.
The majority of this court, by imposing its view of what is to be deemed obscene in this state,8 exceeds our proper judicial function. Our duty is not to draft criminal statutes but to construe them, and where precision is absent, the legislation must be returned to the legislature and not rewritten by a court.
The majority’s “construction” is “measured by common understanding and practice” which assumes an agreement among the people as to what is obscene. Such assumptions should be left to the legislative process.
Given that there is no ordinary meaning to that word and the legislative intent as to any specific prohibition is unknown, for the majority decision to announce the specific acts forbidden seems to me to violate the concept of separation of powers and should be avoided.
*661The Supreme Court in these recent obscenity decisions rejected a “national standard” by which to measure obscenity and affirmed convictions based on jury instructions recognizing a state community standard. Miller v. California, supra at 30; Kaplan v. California, supra at 121. Given this ruling, the majority here holds the community is the “state”. I agree in this holding as I believe it is the only appropriate standard where prosecution is under a state statute. Such uniformity ought to be promoted, particularly where criminal sanctions are imposed.
My disagreement with the majority is that after announcing a new state community standard by which obscenity is to be determined, it proceeds to ignore it because “hard-core pornography can and does speak for itself”.
The effort by the Supreme Court to provide the nation with revised constitutional guidelines for determining what is and what is not “obscene” sought to provide concrete “specific prerequisites” to obscenity convictions. Miller v. California, supra at 27. The need for prosecutions to come within the guidelines established is recognized at page 594 of the majority opinion when it states: “The three elements of the [Miller v. California] test must coalesce before material may be proscribed as ‘obscene’ ”.
Yet, despite these efforts to announce and employ specific standards in order to avoid subjective censorship as much as is possible, the standards are apparently abandoned by the rule that the allegedly obscene materials “are the best evidence of what they represent” thus not requiring “affirmative evidence that the materials were obscene . . .” Paris Adult Theatre I v. Slaton, supra at 56.
One difficulty this rule raises for reasoned appellate review of obscenity prosecutions is illustrated by those convictions now before us which were obtained solely by the introduction of the materials into evidence, followed by judicial determination that they were “obscene”. If a judicial finding of obscenity is sufficient from only viewing the material, how on appellate review, recognizing our rules of “substantial evidence” for findings of fact, are we to deter*662mine if the appropriate “community standard” has been properly applied? Our only recourse would be to review the materials, ourselves act as censors, and come to a majority conclusion as to their criminality.
I regret it is this exact procedure which is adopted by the majority when they conclude: “Our own independent review of the materials leaves us with no question that they are an affront to the contemporary community standards of this state, in the area of sexual matters . . .” (Italics mine.) It is just such a censorship board review that should be avoided by application of precise standards.
The United States Supreme Court’s only guidance in this regard is its statement that:
The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law.
Miller v. California, supra at 30. Presumably, these limiting instructions of law include the appropriate community standard and its explanation. If no evidence is necessary on this question of what is the community standard, how is it possible to provide a meaningful instruction or for appellate courts to ultimately review whether the standard has been applied? In cases where jurors are not the factfinders, summary findings of obscenity without proof on the community standard, invites excessive reliance on the subjective judgment of an individual judge whose solitary views may or may not reflect community standards.
Where the true imposition of community standards is sought it would seem to me that it is necessary to have proof of what the affected community believes appeals to the prurient interest and portrays sexual conduct in an offensive way. Only in this fashion may we avoid the curious presumption that the material viewed, and not the beholder, speaks in judgment.
Rosellini, J., concurs with Utter, J.
Petition for rehearing denied September 18, 1973.
The United States Supreme Court did provide examples of possibly valid legislative enactments providing for specific prohibitions by referring to recent Oregon and Hawaii laws. See Miller v. California, 413 U.S. 15, 24 n.6, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973).
RCW 9.68.010. “Obscene literature, shows, etc.. — Exception. Every person who—
“(1) Having knowledge of the contents thereof shall exhibit, sell, distribute, display for sale or distribution, or having knowledge of the contents thereof shall have in his possession with the intent to sell or distribute any book, magazine, pamphlet, comic book, newspaper, writing, photograph, motion picture film, phonograph record, tape or wire recording, picture, drawing, figure, image, or any object or thing which is obscene; or
“(2) Having knowledge of the contents thereof shall cause to be performed or exhibited, or shall engage in the performance or exhibition of any show, act, play, dance or motion picture which is obscene;”
The majority’s definition is on page 601 of its opinion.