Opinion by
Me. Justice Bok,This is an appeal, on allocatur, from the decision of the Superior Court affirming a conviction and sentence.
Defendant was the manager of a drive-in cinema theatre in Lackawanna County and was arrested by state officers for having shown certain films in October, 1956. He was indicted for having unlawfully exhibited obscene motion pictures under the Act of June 24,1939, P.L. 872, §528; 18 P.S. §4528, which reads as follows: “Whoever gives or participates in or being the owner of any premises, or having control thereof, permits within or on said premises, any dramatic, theatrical, operatic, or vaudeville exhibition, or the exhibition of fixed or moving pictures of a lascivious, sacrilegious, obscene, indecent or immoral nature and character, or such as might tend to corrupt morals, is guilty of a misdemeanor. . . .”
In Hallmark Productions, Inc. v. Carroll, 384 Pa. 348, 358, 121 A. 2d 584 (1956), this court held invalid the Motion Picture Censorship Act of 1915, as amended, and in the course of the opinion Mr. Chief Justice Steen said: “It need hardly be added that even if all precensorship of motion picture films were to be held invalid this would not in and of itself affect the right to suppress objectionable films if exhibited, or to punish their exhibitor.”
This reference to the common law remedy, apart from statute, is supported by Commonwealth v. Sharpless, 2 S. & R. 91 (1815), and Barker v. Commonwealth, 19 Pa. 412 (1852), both involving common law prosecutions, one for exhibiting an obscene picture, and the other for obscene public speech. The indictment in both cases charged intent, and since the indictment in the case at bar does not, it is clear that the prosecution before us was brought under the statute and not under *420the common law. Hence the efficacy of the common law remedy against obscenity is not in issue.
The decisions of the Federal courts are conclusive.
The word “sacrilegious” was held unconstitutional by the Supreme Court of the United States in Burstyn v. Wilson, 343 U.S. 495, 72 S. Ct. 777 (1952), a motion picture case. The case held that the cinema is within the free speech and press protection of the First and Fourteenth Amendments.
The test of being “lascivious, indecent, immoral or impure” and “tending to corrupt morals” was rejected by the Supreme Court in reversing, per curiam, Superior Films v. Department of Education of Ohio and Commercial Pictures v. Regents of the University, 346 U.S. 587, 74 S. Ct. 286 (1954), citing Burstyn. This case also involved a motion picture.
The remaining words of Section 528 are “lascivious, obscene, and indecent”. In the cases of U. S. v. Clarke, D. C., 38 F. 732 (1889) and U. S. v. Davidson, D. C. 244 F. 523 (1917) “lascivious” and “lewd” are held to be synonymous, and “lewd” and “obscene” are given as definitions for “indecent”: see also Swearingen v. U. S., 161 U.S. 446, 16 S. Ct. 562 (1896); U. S. v. Ulysses, 72 F. 2d 705 (1934).
This leaves the single term “obscene” to consider.
It was held unconstitutional, per curiam, citing Burstyn and Superior Films, in Holmby Productions, Inc. v. Vaughn, 350 U.S. 870, 76 S. Ct. 117 (1955), a motion picture case. The phrase under attack was “obscene, indecent, or immoral or such as tend to debase or corrupt morals.”
In June, 1357, the United States Supreme Court decided Roth & Alberts v. U. S., 354 U.S. 476, 77 S. Ct. 1304 (1957) a book case, in which “the dispositive question is whether obscenity is utterance within the area *421of protected speech and press”, and held that it was not. The opinion refers to “the proper standard for judging obscenity” and states it to be this: “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”
Five months later the Supreme Court reversed Times Film Corp. v. Chicago, 355 U.S. 35, 78 S. Ct. 115 (1957), a motion picture case, citing Roth & Alberts. The Circuit Court had held: “The ordinance now under attack, as we have seen, uses the words ‘immoral or obscene’. The Illinois Supreme Court has held, in speaking of this ordinance, that these words are synonymous and that a motion picture is obscene or immoral, within the meaning of the ordinance, if, when considered as a whole, its calculated purpose or dominant effect is substantially to arouse sexual desires, and if the probability of this effect is so great as to outweigh whatever artistic or other merits the film may possess. . . . With this interpretation of the words ‘obscene’ and ‘immoral’ read into the ordinance now before us, we believe the ordinance is not vague, as contended by plaintiff. Those words are precise and they constitute a proper test in the case at bar.”
If the Times Film standard could not pass the Roth & Alberts test, a fortiori Section 528 cannot either.
In this posture of the law our conclusion in Hallmark is dispositive: “The picture involved in the present case was disapproved by the Board of Censors because it was ‘indecent and immoral and, in the judgment of the Board tended to debase and corrupt morals’. In view of the foregoing decisions of the Supreme Court [not including Roth & Alberts, which was written later], individually and collectively, we are of opinion that these terms must be held subject to the same fatal *422objections as those which invalidated the statutes held unconstitutional by that Court.”
Judgment reversed and defendant discharged.